Robert Gordon v Uniting Communities

[2014] FWC 6220

[2014] FWC 6220

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Gordon
v
Uniting Communities
(U2014/11416)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 8 SEPTEMBER 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 5 September 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 5 August 2014 Mr Gordon lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the alleged termination of his employment with Uniting Communities.

[3] In that application, Mr Gordon asserted that he had not received any notification of the termination of his employment but that he had not been given any work since 23 April 2014. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time. 1

“1. The Applicant has been employed with the Respondent as a casual caseworker since 28 November 2011.

2. The Applicant worked an average of two days per week (evidenced by Appendix B).

3. Since 23 April 2014 the applicant has not been given any hours of work.

4. The Applicant has not received any notification of termination of employment. The dismissal is constructive based on these facts.”

(Note Appendix B (referenced at point 2.), not required for this purpose).

[4] The application was referred to me for consideration. On 18 August 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 3 September 2014. Mr Gordon was required to provide a witness statement and a copy of any document relied upon, by 27 August 2014. The telephone conference date was subsequently changed to 5 September 2014.

[5] An Employer’s Response (Form F3) to the application was received. That response asserted that Mr Gordon was not dismissed and that he remained under consideration for casual work. Further, that in the alternative, Mr Gordon had not been employed on a regular and systematic basis such that he had not completed the minimum employment period necessary to be a person protected from unfair dismissal. Finally, and as a further alternative position Uniting Communities asserted that the application was lodged outside of the 21 day time limit and that exceptional circumstances necessary to extend that time did not apply.

[6] Mr Gordon was represented by Mr Wright of counsel. Notwithstanding the directions in the 18 August 2014 correspondence Mr Wright provided a summary of argument on 3 September 2014. This summary stated:

“1. The Applicant is Robert Gordon (‘the Applicant’).

2. The Respondent is Uniting Communities (‘the Respondent’)

MINIMUM EMPLOYMENT PERIOD

3. The Applicant entered into an employment contract (‘the contract’) with the Respondent on 28 November 2011.

4. The contract said that the Applicant would be employed as a Case Worker and would be employed by the Respondent on a casual basis.

5. Since gaining employment with the Respondent on 28 November 2011 the Applicant worked regular and systematic hours until 23 April 2014.

6. The Applicants regular and systematic continuous service occurred for at least 28 months.

7. The Applicants length of employment therefore satisfies the minimum employment period enunciated in ss383 and 384 of the Fair Work Act 2009 by 22 months.

8. In these circumstances the Applicant has jurisdiction.

OUT OF TIME

9. An essential part of the contract required the Respondent provide work to the Applicant and the Applicant undertake that work and be duly compensated (by being provided with a wage).

10. The Respondent did not provide work to the Applicant after 23 April 2014 therefore the Applicant treated the contract at an end on 9 July 2014.

11. The Applicants last day of work with the Respondent was 23 April 2014.

12. The last day of work is not the date of dismissal.

13. The Respondent asserts in the alternative that the Applicant is out of time as he failed to lodge the unfair dismissal claim within 21 days of the date of his last shift.

14. The time to bring a claim for unfair dismissal is within 21 days of the date of dismissal not the date of a workers last shift.

15. The Applicant treated the contract ‘at an end’ on 9 July 2014 which is the date the Applicant lodged the unfair dismissal therefore within the time constraints imposed by the Act.

16. In the circumstances the Applicant has jurisdiction.

NOT DISMISSED

17. The Respondent asserts that the Applicant is not dismissed therefore does not have jurisdiction to bring a claim for unfair dismissal.

18. The Applicant alleges a constructive dismissal.

19. The basis of the Applicant alleging constructive dismissal is as a result of not being offered work from the Respondent for at least 10 weeks.

20. The principle aspect of the contract was for the Respondent to provide the Applicant with work.

21. Given the Respondent did not provide the Applicant with work the Applicant treated the contract as ‘at an end’.

22. The Applicant treated the contract ‘at an end’ on 9 July 2014.

23. As the Applicant has been constructively dismissed the Applicant has jurisdiction.”

[7] The extension of time issue was considered through a telephone conference on 5 September 2014. A sound file record of this conference was kept. Mr Gordon participated in this conference and was represented by Mr Wright. Uniting Communities was represented by Mr Love, of counsel. Permission in both cases was granted pursuant to s.596(2)(a) of the FW Act.

[8] The advice provided to Mr Gordon on 18 August 2014 stated:

“If you fail to comply with these directions the Senior Deputy President may conclude that you no longer seek to pursue the application and close the file accordingly. Alternatively, the Senior Deputy President may determine the matter on the material before him”

[9] I do not consider that Mr Gordon complied with my directions. No witness statement detailing his position relative to the extension of time issue was provided to me and the only material before me prior to the conference was the summary of argument provided by Mr Wright. Mr Wright advised that the absence of a witness statement was a consequence of Mr Gordon being away for some of the time after 18 August 2014 and his own absence over that time. Consequently, I elected to consider all of the material before me, including the advice provided at the conference by Mr Gordon.

[10] That advice confirms that the differences between the parties extend to the nature of Mr Gordon’s casual employment with Uniting Communities, whether he was dismissed and, if so, when this dismissal took effect. Each of these issues has the capacity to impact on the issue of whether this application can be pursued.

[11] I elected to limit my initial considerations to the extension of time issue. It appeared to me that this issue represents the jurisdictional issue best capable of consideration through the telephone conference.

[12] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[13] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[14] At the conference Mr Gordon advised that the advice in his application to the effect that he acknowledged that the application was lodged out of time was incorrect and should be regarded as an administrative error. He stated that he did not consider the application was lodged out of time because, until the time just prior to his lodgement of the application he did not understand that he had been dismissed.

[15] The summary of argument provided to me by Mr Wright stated: 2

“The Respondent did not provide work to the Applicant after 23 April 2014 therefore the Applicant treated the contract at an end on 9 July 2014.”

[16] Mr Gordon advised that he could not recall having reached a conclusion that his employment had been terminated by 9 July 2014. However, his application was signed and dated 9 July 2014. Consequently, I have concluded that, as at 9 July 2014 Mr Gordon had concluded that he had been dismissed.

[17] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged on 5 August 2014. This means that, if it was lodged within that 21 day time limit the termination of Mr Gordon’s employment must have occurred on or after 15 July 2014. Mr Gordon’s advice is that he was simply not provided with work after 23 April 2014. The basis upon which he reached the conclusion by 9 July 2014 that he had been terminated is, at best highly questionable. I think the termination of Mr Gordon’s employment must have occurred at some time around two weeks after 23 April 2014. The advice provided to me was that while he averaged two days work per week there were periods of up to 2 weeks during which Mr Gordon was not called in to work. Notwithstanding this, even if I accepted 9 July 2014 as the date upon which Mr Gordon concluded that his employment had been terminated, his application was not lodged within the 21 day time limit. Consequently, the application can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Gordon’s circumstances can be regarded as exceptional for the purposes of this subsection.

[18] The information Mr Gordon has provided does not adequately explain why the application could not have been lodged at an earlier time. I have accepted that there is some doubt about the regularity of Mr Gordon’s casual employment. If that employment was as regular as Mr Gordon asserts to be the case then the reason for his delay in lodging the application becomes even more dubious. Mr Gordon has not advanced any reason why it is that he waited from 23 April 2014 to 9 July to sign his application or, then, until 5 August 2014 to lodge the application. If it was the case that his employment was so irregular that delays between work engagements of this magnitude would be common he would be unable to establish that his casual employment was of a regular and systematic nature and that he had a reasonable expectation of that regular and systematic employment continuing so as to be able to complete the minimum employment period for the purposes of s.382 of the FW Act.

[19] Accordingly, as I have concluded that the termination of Mr Gordon’s employment occurred well before 15 July 2014, I am not satisfied that his assertion that he was unaware that he was dismissed for over three months represents an acceptable reason for the delay in lodging this unfair dismissal application. Additionally, I am not persuaded by Mr Wright’s submission that the termination of Mr Gordon’s employment was a constructive dismissal, or, in any event, that Mr Gordon seriously considered, after such a long period without any offer of casual work, that he was still engaged as a regular casual employee.

[20] Mr Gordon also asserts that a reason for the delay related to the extent to which he was stressed over the provision to him of a warning in mid April 2014. In this regard I note that he took action in the South Australian Equal Opportunity Tribunal but subsequently discontinued that action. I am not satisfied that Mr Gordon’s concern about disciplinary action which occurred in mid April can be established as a reason for this long delay in lodging this application Accordingly, I am not satisfied that Mr Gordon has established to me a satisfactory reason for the very substantial delay.

[21] I have accepted Mr Gordon’s advice that he was not told of the termination of his employment. Equally, the Uniting Communities position is that he has not been dismissed and remains on its register of persons who might be invited to undertake casual work. The long time between 23 April 2014, when Mr Gordon last worked, and the present time, supports the proposition that his casual employment has concluded. In this respect I note that the parties are in dispute over the regularity of that employment. As a consequence, I have adopted the position that the absence of advice about the termination of Mr Gordon’s casual employment and his attendant uncertainty in this respect supports some leniency in terms of the extension of time issue. That position does not extend to explaining the delay after 9 July 2014 when Mr Gordon signed this application.

[22] I am satisfied that Mr Gordon took action to challenge the disciplinary action taken against him in mid April 2014. It is clear that this involved contact with the Fair Work Ombudsman and various Community Legal Centres. Notwithstanding this, a logical step would have been some contact with Uniting Communities. It is clear that that Mr Gordon did not take action of that nature.

[23] I have concluded that, given the time involved, the granting of an extension of time would prejudice the respondent in this matter.

[24] In terms of the merits of the application, s.382 establishes that, for a person to be protected from unfair dismissal he or she must have completed the minimum employment period specified in s 383. This issue is clearly a matter about which the parties are in dispute. I have not reached a definitive conclusion in this respect and have, except for the considerations detailed above, regarded the merits of Mr Gordon’s application as a neutral factor in the consideration of the extension of time issue.

[25] Considerations of fairness relative to persons in similar circumstances to Mr Gordon’s where no acceptable reason for a long delay in taking action has been advanced, do not support an extension of time.

Conclusion

[26] I have applied the approached adopted in Nulty v Blue Star Group Pty Ltd 3 where a Full Bench stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[27] For the reasons I have set out above, Mr Gordon’s circumstances do not support an extension of time. On the approach in Nulty those circumstances cannot be regarded as exceptional for the purposes of s.394(3). In these circumstances I have not found it necessary to deal with the Uniting Communities objections to the application made on the basis that Mr Gordon was not dismissed and that he had not completed the requisite minimum employment period. The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR555199) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by Telephone):

A Wright counsel for the Applicant.

J Love counsel for the Respondent.

Hearing (Conference) details:

2014.

Adelaide:

September 5.

 1   Form F2, para 1.4

 2   Summary of Argument, para 10

 3   [2011] FWAFB 975

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