Rodney Price v CDC Ballarat Pty Ltd

[2020] FWC 3390

[2020] FWC 3390

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Price
v
CDC Ballarat Pty Ltd
(U2020/7646)

COMMISSIONER LEE MELBOURNE, 2 JULY 2020

Application for an unfair dismissal remedy - extension of time refused.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 19 June 2020.

[2] Rodney Price (the Applicant) commenced employment with CDC Ballarat trading as CDC Ballarat Proprietary Limited (the Respondent) on 22 October 2001. The reason given by the Respondent for the decision to terminate the Applicant’s employment was that in fact the Applicant’s employment was not terminated at the initiative of the Respondent and that he in fact resigned from his employment. The Applicant confirmed that in the hearing today and it is apparent from the material before me that the Applicant did resign but I note that it would appear that the Applicant argues that the resignation was forced due to the conduct or course of conduct by the employer. I will return to that matter later in the decision.

[3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was lodged on 3 June 2020. The application was filed outside of the statutory timeframe. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. If the Applicant’s employment was terminated by the Respondent as alleged by the Applicant, and for the purposes of this decision I assume that it was, with effect from 5 March 2020, then based on a termination date taking effect on 5 March 2020, the application for a remedy should have been lodged by no later than 26 March 2020 which means that the application is 69 days out of time.

[4] I will just note that I drew the attention of the Applicant during the proceedings to an email exchange between himself and someone called Marcelle from the company. In that email, Marcelle put that the termination took effect on 6 March, but the Applicant was clear that in his view the termination took effect on 5 March. That has not been contradicted by the Respondent and in the circumstances I am satisfied that the termination took effect on 5 March 2020. The application was therefore lodged outside of the time described. The application was made, in effect, 69 days after the last date at which it should have been made. The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[5] Before dealing with the evidentiary matters let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act the statute allows me to allow a further period but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion. The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

(a) the reason for the delay;

(b) whether the Applicant first became aware of the dismissal after the date it took effect;

(c) any action taken by the Applicant to dispute the dismissal;

(d) prejudice to the Respondent including prejudice caused by the delay;

(e) the merits of the application; and

(f) fairness as between the Applicant and other persons in a similar position.

[6] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation be particularly significant so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 1

[7] Briefly, “exceptional circumstances” are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. 2 I must be satisfied that taking into account s.394(3) of the Act that there are exceptional circumstances.

[8] I will now consider these matters in the context of the application. Firstly, the reason for the delay. The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an application in the assessment of whether there are exceptional circumstances and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour. However, all of the circumstances must be considered. 3

[9] In response to the Directions that were made requiring the Applicant to put in material in support of the extension of time, the Applicant provided a letter from his doctor and relies to some extent on that letter. The letter is from the Applicant’s treating general practitioner, Dr Birch, and the letter speaks about the difficulty the Applicant had at work, and claims of bullying conduct, et cetera. Relevantly in terms of the reason for the delay, that letter says as follows:

“I referred Rodney to a colleague of mine for counselling to help him throughout this process. In discussion with Sr. Lee, it became very apparent between both of us that the workplace situation was one of bullying and harassment which led Rodney to leave with some sense of dignity. In addition, this is not part of the reason, but there are contributing factors to Rodney’s dedication. Rodney had a significant loss in the family of his son four years ago, which was very tragic. Rodney has persisted and continued to work all the way through and has been a very committed, and well-liked staff member.” (errors in original)

[10] Of most relevance to the delay, the letter goes on to say:

“Unfortunately, throughout the episode of Covid19, as you would be aware there was difficulties trying to gain information and get appointments. We were waiting on a barrister that we know to see whether we could help Rodney in any way. We finally made contact and he recommended that Rodney had a very strong case and to go to WorkSafe.

I would gratefully appreciate your support to assist Rodney. We apologise for any delays in getting this through to you and we take full responsibility for that delay.”

(errors in original)

[11] During the hearing I asked the Applicant about the circumstances around the reason for the delay and the effect of the Applicant’s evidence was that he arranged to meet a practitioner at a health institution known as Mind@Health. He was dealing with someone called Lorraine who indicated that she would arrange for the Applicant to meet with a Queen’s Counsel (QC) to assist. The Applicant’s evidence is that when COVID-19 became prevalent towards the end of March 2020, that the QC was put into quarantine and that he was then unable to access the QC. He did take some other action in that he attended Trades Hall in Ballarat to seek assistance but as he was no longer a member of the union, it appears that that effort was to no avail.

[12] The Applicant’s evidence is that he never actually met with the QC. To be clear, the QC was, according to the Applicant, put into quarantine around the end of March 2020. When I asked the Applicant what action he took after it became known to him that the QC was in quarantine, bearing in mind that this application was lodged in early June 2020, some two months later, the Applicant replied that he had left the matter in the hands of his doctor and there was no indication that the Applicant took any other steps to try and lodge his application. There is no indication in the evidence from the Applicant that he has given clear instructions to the QC. Indeed, that would be difficult in circumstances where he has not actually met them to lodge an application of unfair dismissal. I note that in the F2, in answer to the question of whether the Applicant was represented, he said in answer to that question that he did not know. I have to give consideration as to whether despite the fact that even in circumstances where the Applicant has not met with a legal representative but seems to be relying on his doctor to take care of the matter, whether or not this is a case of representative error. I note that late lodgement of an application due to representative error may be grounds for an extension of time but there is a distinction between a delay caused by a representative where the employee is blameless, and when the employee has contributed to the delay, and it is the actions of the employee that are the central consideration.

[13] There is no evidence that the Applicant has given clear instructions to lodge an application and that a representative has failed to do so. It is not a situation which I think would fall into the representative error category, in any case, and I so find. The Applicant could have taken steps in April or May 2020 to lodge the application. I accept that COVID-19 caused difficulties in many respects but there was ample time for the Applicant to take action having become aware that the QC was on lockdown, for him to do something but he did not. Taking all of those factors into consideration I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

[14] Turning to the consideration as to whether the Applicant first became aware of the dismissal after the date it took effect, it is apparent that the Applicant first became aware of the alleged dismissal when he resigned, which is his own evidence, on 5 March 2020. So there is nothing that weighs either for or against an extension having considered that factor and I find that to be a neutral consideration.

[15] I now turn to action taken by the Applicant to dispute his dismissal. Essentially there were some exchanges after the Applicant’s resignation on 5 March 2020 which extended into 6 March 2020 and there was a meeting on 6 March 2020 where it seems there was an exchange of views. But relevantly it is not apparent from the evidence, and I put this to the Applicant, that at any point he sought to retract his resignation. The Applicant was clear in his evidence today that he did not seek to retract his resignation at any time after his dismissal. There was a rather confused exchange where the person by the name of Marcelle indicated that the company was prepared to waiver the notice period. The Applicant erroneously understood that to mean that the company was in effect waiving his resignation but it is apparent that is not what the company was doing. But in any case, in considering this factor which is about action taken by the Applicant to dispute the dismissal, while he erroneously accepted what he thought was an offer to waive or put on hold his dismissal, he had never actually asked for that and never sought to rescind it. Taken as a whole there is no evidence that the Applicant took action to dispute his dismissal beyond lodging this application 69 days out of time and so that is a factor that weighs slightly against granting an extension of time.

[16] In respect of prejudice, the Respondent has submitted that it is prejudiced by the significant delay in the Applicant’s filing of this claim, that the Respondent is not able to accommodate reinstatement as the Applicant’s role has been filled, and that the Applicant’s request for relief by way of compensation would be unfair to the Respondent in those circumstances. Generally, this is a fairly lengthy delay and there is authority for the proposition that a long delay gives rise ‘to a general presumption of prejudice’. 4 The Applicant disputes that there is any prejudice to the Respondent. I accept in the circumstances of this case given the lengthy delay there is some prejudice and so again it is not a strong factor but it weighs slightly against the Applicant in this case.

[17] I now turn to the merits of the application. In cases such as this where the substantial merits of an application are not fully examined into or agitated it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable. Doing that on the evidence before me it seems to me clear that the Applicant resigned, and the Applicant’s evidence today was quite crystal clear about that. In circumstances where there is a resignation, ordinarily it would be held that the termination is not at the initiative of the employer and that for that reason this application would be jurisdictionally barred and would have no reasonable prospects of success.

[18] To succeed on jurisdiction the Applicant would need to make out that his resignation was forced due to conduct or a course of conduct engaged in by the Respondent sufficient to meet the legislative test for constructive dismissal as was put by the Respondent, and I agree with that, or alternatively that he resigned in the heat of the moment. In the exchange that I had in terms of the questions I asked the Applicant today, it seems clear and he referred me to the seven page document that he has provided in this case which certainly sets out in some detail the litany of concerns that the Applicant had about the manner in which the company conducted the workplace, the work pressures he was under, the amount of work he was doing, and so on and so forth, such that it is apparent to me that while the unrepresented Applicant has not made it crystal clear it is apparent that his view is that he was indeed forced to resign due to conduct or a course of conduct engaged in by the Respondent.

[19] The circumstances are that of course having regard to the statement that I made at the outset of considering this part of the criteria, the merits of the application, I do not fully examine or make a full assessment of the merits of the case but I would make these observations, that generally an employer is entitled to accept a resignation when it is in clear terms and it can be a difficult road for an Applicant to demonstrate that they had no choice but resign and they were forced to do so because of the conduct of the employer. But that said, that case can be made out. Overall, having considered this factor I don’t think that this is a strong case for the reasons above, and rate it as a weak case purely on the basis that the resignation is in such clear terms. However, I am not in a position, based on the evidence, to say that it is a case where the merits are such that it would lead me to find that this was a factor that weighed against the Applicant. And so in considering the merits of the application I find that this is a matter that is neutral.

[20] As to fairness between the Applicant and other persons in a similar position, the Respondent puts that there would be a negative precedent set to the Respondent’s workforce if an employee’s application for relief could be lodged and heard so far out of time. I do not think that is a relevant consideration. Nothing in particular was put by the Applicant on this point. Consequently, I find that considering fairness between the Applicant and other persons in a similar position that the matter is a neutral consideration in the present circumstances.

[21] In conclusion, statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against desirability and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly. Otherwise, unless there are exceptional circumstances, the right to bring the action will be lost. A person who seeks relief from an unfair dismissal application must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period.

[22] Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period. As I have already indicated, considering whether there is an acceptable reason, that is a factor that weighs against the Applicant; considering the criteria of when the Applicant first became aware of the dismissal, that is a neutral consideration; in terms of action or, in this case, the lack of action to dispute the dismissal, that is a factor that weighs slightly against the Applicant. Similarly, prejudice to the employer as a factor, weighs slightly against the Applicant and I consider the merits and fairness factors to be neutral considerations.

[23] Looking at all of the factors it is apparent that three of them weigh against the applicant, two of them only slightly against but certainly acceptable reason is a matter that weighs against the Applicant, and all of the other factors are neutral. There are no factors weighing in favour of the Applicant. So having taken into account all of those factors, as I have indicated I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect was issued separately in PR720496.

COMMISSIONER

Appearances:

R Price on behalf of himself
R Turner on behalf of the Respondent

Hearing details:

2020.
Melbourne (by telephone).
19 June.

Printed by authority of the Commonwealth Government Printer

<PR720561>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 4   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556