Robert Csontos v Kewarra Lifestyles Pty Ltd
[2024] FWC 1687
•27 JUNE 2024
[2024] FWC 1687
The attached document replaces the document previously issued with the above code on 27 June 2024.
The following correction has been made:
Replace the words “77 days” with the words “55 days” at paragraph [4] of the decision.
Associate to Deputy President Boyce
Dated: 28 June 2024
| [2024] FWC 1687 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Robert Csontos
v
Kewarra Lifestyles Pty Ltd
(C2024/2905)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 27 JUNE 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – application filed 24 days out of time – no exceptional circumstances – application dismissed.
On 5 May 2024, Mr Robert Csontos (Applicant), filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by Kewarra Lifestyles Pty Ltd (Respondent) in contravention of Part 3-1 of the Act. The Respondent operates Kewarra Aged Care.
Section 366(1) of the Act provides that an application made under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]
It is not in dispute between the parties that the employment relationship between the Applicant and the Respondent came to an end by way of dismissal on 24 March 2024. It is also not in dispute that the Applicant was aware of the cessation of his employment with the Respondent on that date. I equally make this finding.
Given that the Applicant has filed his Application on 5 May 2024, the Application has been filed 24 days outside of (or beyond) the 21 day time limit under s.366(1)(a) of the Act, and 55 days after his dismissal. The Applicant should have filed his Application on or before 11 April 2024 for it to have been filed within the requisite 21 day time period.
This matter was allocated to my Chambers on 22 May 2024, and Directions were issued on 24 May 2024, to program for hearing of the Applicant’s request for a 24 day extension of time to file his Application. Both parties complied with those Directions, and/or there is no evidence that either party did not have any opportunity to comply, or otherwise misunderstood what the Directions required of them.
At the hearing on 26 June 2024, the Applicant appeared for himself, and Ms Nina Hoang, Senior Associate, FCW Lawyers, appeared with permission for the Respondent.[2]
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to grant an extension of time.
The test of “exceptional circumstances” is a “high hurdle” for an applicant to meet, and involves the exercise of a broad discretion by the Commission.[3]
The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd[4] (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[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.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[5]
The matters under s.366(2)(a)-(e) of the Act need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[6]:
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
…[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[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.”[7]
It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ (as required under s.366(2) of the Act) requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne
v Abel[8]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”[9]
(my emphasis)
Reason for delay[10]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[11] (Bianca Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[12] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay,[13] but this would be most unusual. The focus is upon the period of delay following the expiry of the 21 day time period, albeit circumstances arising prior to the delay may be relevant.[14]
I confirmed with the Applicant at the hearing on 26 June 2024 that his reasons for delay are those outlined in his Form F8, at Item 1.5.[15] The Applicant somewhat further elaborated on those reasons at the hearing, however, essentially they remain (in summary) the same, namely:
a) I have been sick;[16]
b) I needed to wait for further test from doctors and to wait for the results;[17]
c) I was seeking legal advice; and
d) I lodged the wrong [unfair dismissal] application first.
There is no evidence of any legal advice being sought by the Applicant, nor was this issue elaborated upon at the hearing. The Applicant’s reason for delay of “seeking legal advice” thus has no evidentiary foundation in these proceedings, and I thus reject it as a reason for delay.
As to the Applicant filing the wrong [unfair dismissal] application first, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement and ignorance of, or unfamiliarity with, the Commission or its unfair dismissal or general protections jurisdiction, is not an exceptional circumstance. In any event, the Applicant’s unfair dismissal claim was lodged 13 days after the expiry of the 21-day time period, and the Applicant has not provided a reason for that 13 day delay. I reject the reason for delay, based upon the Applicant filing the wrong [unfair dismissal] application, as reasonable or credible, such that it explains the Applicant’s delay in filing his Application in these proceedings.
As to the reason for delay based upon the Applicant being sick and/or awaiting test results from his doctors, I accept (and make findings and conclusions as to the facts and the law consistent with) the following unchallenged submissions of the Respondent:
“11. Medical conditions on their own are not sufficient evidence of incapacity. The medical documentation provided by the Applicant is vague. The Applicant has not provided and/or filed any evidence of the relevant incapacity arising from his health condition which could have impeded the lodgement of the GP Application.
12. The Applicant’s actions during the 21-day time limit demonstrate he was not incapable of making the GP Application. The Application establishes the Applicant was able to attend medical examinations, pathology appointments and medical consultations during this period. The Applicant was also able to contact the Respondent’s Human Resources Department to request another job during the 21-day time limit (the details are outlined below). No evidence is offered or relied upon, to suggest a health or other reason prevented the Applicant from making the GP Application within the requisite period.
13. The GP Application lodged by the Applicant is not particularly long or complex, rather it is a simple restatement of the Applicant’s version of events. There is no reasonable basis as to why the GP Application was filed after such a considerable delay (two times the prescribed time limit).
14. Further despite the Applicant’s evidence that he continues to suffer from the same medical conditions, he has been capable of filing relatively detailed submissions in support of this Application.”[18]
At the hearing, Ms Hoang (on behalf of the Respondent) further submitted that the Applicant’s medical evidence is self-evidently vague and unclear as to the Applicant’s medical condition (indeed, no specific medical condition, diagnosis, or level of incapacity is identifiable). In this regard, no finding could possibly be made as to incapacity, based upon the medical evidence relied upon by the Applicant, in support of the Applicant’s reason/s for his 24 day delay in filing his Application this case. I concur with the submissions of Ms Hoang in this regard.
Having regard to the evidence and submissions of the parties, I do not accept that the Applicant has provided credible or “probative” evidence confirming that he was ‘prevented’ (or unable) to file his Application within 21 days of his dismissal. The reasons for delay relied upon by the Applicant simply do not, or do not sufficiently and specifically, explain his lengthy 24 day delay in the filing of his Application. I conclude that the Applicant’s reasons for delay in this case are such that they weigh against any finding as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute his dismissal[19]
The Applicant was aware of his dismissal by the Respondent on the day that it took effect (i.e. 21 March 2024). He filed an unfair dismissal application on 24 April 2024 (which was itself filed 13 days out of time), but discontinued it on 3 May 2024. He also made a reemployment request from the Respondent on 21 March 2024, which was rejected.[20] In the overall circumstances, I treat this criterion as a neutral consideration, that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Prejudice[21]
The next criterion to be considered is any prejudice to the Respondent occasioned by the 24 day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[22] In this case, I treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances in this case.
Merits[23]
The principles stated Kyvelos v Champion Socks Pty Ltd[24] (Kyvelos), albeit in relation to a predecessor of the Act, still remains good law and are worth noting and setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[25]
In Kornicki v Telstra-Network Technology Group,[26] the Full Bench of the Australian Industrial Relations 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 Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. 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.”
The Applicant says that his dismissal occurred in contravention of Part 3-1 of the Act. In doing so, he makes various contentions as to fact and law.[27]
The Respondent denies the Applicant’s claims as to contravention, and says that the Applicant was lawfully dismissed for misconduct.[28]
The Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant. In this case, the merits of the Application were not fully tested before me. I note that all of the evidence as to the substantive merits of the Application (from both the Applicant and the Respondent) is not before me. Whilst one might say that the Applicant’s case has merit (or is arguable), one cannot otherwise say that the Respondent’s defences (even taking into account issues of reverse onus) are unarguable, or are absent merit. In my view, the merits of the Application in this case, and the strength of the Respondent’s defence and counter assertions, are both arguable.
But the fact that something is arguable does not mean that it has reasonable prospects of success, or is unequivocally meritorious. It simply means that adverse action (i.e. dismissal) has occurred, and an Applicant asserts that he or she was subjected to such adverse action for a prohibited reason. The rubber hits the road only where the adverse action is taken “because of” a prohibited reason, and in most cases the resolution of that issue will be subject to determinations as to witness credibility, tested against documentary or other objective evidence, and factual findings. As SDP Richards stated in Wilson v Woolworths[29]:
“… the merits of the application have not been canvassed through the proper formal determinative process by which evidence is taken under oath and which is further adduced through the machinery of cross-examination and re-examination.”[30]
In summary, to reach a conclusion beyond the threshold of ‘arguable’ in this case would require close scrutiny in a contested hearing, which is completely unwarranted in an out of time (or other interlocutory) hearing (and has not occurred in this case before me).[31] I therefore treat merits of the Application in this case as no more than a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[32]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there are the same, or similar, characteristics and/or circumstances.[33]
Neither party put forward or otherwise referred to cases that are asserted to hold analogies with this case. I am equally not aware of any employees in a similar position to the Applicant, or cases, from a true comparator perspective, where there are the same, or similar, characteristics and/or circumstances as those of the Applicant. I therefore treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Conclusion
I have taken into account and considered each of the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. one criteria weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[34]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence “exceptional circumstances” in this case as that term has been described or defined in Nulty[35]. In view of this finding, there is no power at law for me to exercise my discretion to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 5 May 2024 is dismissed, and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant (Mr Robert Csontos) appeared for himself.
Ms Nina Hoang, Senior Associate, FCW Lawyers, appeared with permission for the Respondent (Kewarra Lifestyles Pty Ltd).
[1] See ss.366(1)(b) and (2) of the Fair Work Act 2009 (Act).
[2] See transcript for decision on “permission” being granted for the Respondent to be legally represented generally in this matter (including at the hearing on 26 June 2024) pursuant to s.596 of the Fair Work Act 2009.
[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] Ibid at [13]-[15].
[6] [2018] FWCFB 901.
[7] Ibid, at [17], [19], [38]-[39].
[8] (1964) 38 ALJR 293.
[9] Ibid, at 301.
[10] Section 366(2)(a) of the Act.
[11] [2021] FWC 3903.
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39]-[40].
[13] Ibid, at [40].
[14] Shaw v ANZ Bank[2015] FWCFB 287, at [12].
[15] See also email from the Applicant to Ms Nina Hoang and GPT dated 22 May 2024 (7:50pm), Paragraph “A”.
[16] Medical Certificate dated 24 April 2024 from Dr Gagandeep Rajpal, Harmony Family Medical Centre, and Work Capacity Certificate dated 4 June 2024.
[17] No evidence supplied in support of this contention.
[18] Respondent’s Written Submissions (21 June 2024), footnotes omitted.
[19] Section 366(2)(b) of the Act.
[20] See email to/from Ms Georgia Jongebloed dated 21 March 2024.
[21] Section 366(2)(c) of the Act.
[22] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[23] Section 366(2)(d) of the Act.
[24] (1995) 67 IR 298.
[25] Ibid, at 299 to 300.
[26] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[27] See Applicant’s materials filed by email on 22 and 23 May 2024, and 5 June 2024, and Form F8, at Items 2.2 and 3.1.
[28] See Form F8A employer response (filed 22 May 2024), at Items 2.1 and 3.1, and the Respondent’s Written Submissions (dated 21 June 2024), at [21]-[24].
[29] [2010] FWA 2480.
[30] Ibid, at [23].
[31] Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[32] Section 366(2)(e) of the Act.
[33] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37]; Perry v Rio Tinto Shipping[2016] FWCFB 6963, at [41].
[34] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[35] [2011] FWAFB 975, at [13].
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