Ronald Kelly v Workforce Recruitment & Labour Services Pty Ltd

[2018] FWC 6513

[2018] FWC 6513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ronald Kelly
v
Workforce Recruitment & Labour Services Pty Ltd
(U2018/7817)

COMMISSIONER CAMBRIDGE SYDNEY, 6 NOVEMBER 2018

Unfair dismissal - jurisdictional objection - application made out of time - other application made in wrong jurisdiction also out of time - exceptional circumstances not established - extension of time refused.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 27 July 2018. The application was made by Ronald Alfred Kelly (the applicant) and the respondent employer is Workforce Recruitment & Labour Services Pty Ltd (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was Saturday, 2 June 2018. Consequently, the application was not made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The application identified that it had not been made within 21 calendar days after the dismissal, and an explanation for the late filing was provided. That explanation involved mention that the applicant had made an unfair dismissal application in the Industrial Relations Commission of New South Wales (the IRC).

[4] The employer’s response to the application (Form F3) relevantly indicated that the application was opposed upon two jurisdictional objections. Firstly, the employer confirmed its objection to the application being made out of time, and secondly, the employer claimed that the applicant had not been dismissed but rather he had resigned from his employment on 4 June 2018.

[5] The matter was listed for Conciliation, by telephone, on 30 August 2018. However, the Conciliation was cancelled as the employer advised that they wished for their jurisdictional objections to be dealt with before any other proceedings were held.

[6] On 16 August 2018, the Fair Work Commission (the Commission) wrote to the applicant advising him of the contest about the application having been made outside of the 21 day time limit. The applicant was invited to provide, inter alia, documentary material to support any proposition that exceptional circumstances existed so as to permit the Commission to allow the matter to proceed out of time.

[7] On 23 August 2018, the Marrickville Legal Centre provided the Commission with a statement made by the applicant dated 22 August 2018. The Marrickville Legal Centre advised that they were not acting for the applicant but they provided the statement in relation to the applicant’s request for his claim to be accepted out of time.

[8] On 10 September 2018, the Commission convened a Pre-Hearing Conference during which permission was granted under s. 596 of the Act for either of the Parties to be represented by lawyers or paid agents. Further, the Commission issued Directions for the filing and service of submissions and evidentiary material in support of the respective positions regarding the jurisdictional objection concerning the application being made out of time.

[9] In due course the Parties filed their respective documentary materials and although the employer indicated its consent for the jurisdictional objection to be determined on the basis of the filed documentary material, the applicant indicated that he wanted the matter to proceed to a Hearing. Consequently, on 23 October 2018, the matter proceeded to a Hearing in respect to the determination of the Jurisdictional (Out of Time) objection.

[10] At the Hearing the applicant appeared unrepresented, and the respondent was represented by Mr D Lyons, agent, from Workplace Solutions. The applicant provided evidence as a witness. The documentary material that had been submitted by the applicant was introduced into evidence and marked as Exhibits 1 and 2. Mr Lyons cross-examined the applicant on particular aspects of the contents of Exhibit 1. Following the appearance of the applicant as a witness, both the applicant and Mr Lyons made oral submissions in support of their respective positions.

Relevant Factual Background

[11] The applicant had worked for the employer for about 6 months and 2 weeks. The applicant was engaged to perform work for the Hornsby Council. As a result of some traffic incident that apparently occurred prior to 2 June 2018, the Hornsby Council apparently advised the applicant that they did not wish for him to continue to work for the Hornsby Council.

[12] The applicant treated the advice provided to him by the Hornsby Council management as his dismissal. On or about Wednesday, 13 June 2018, the applicant contacted the Gosford office of Legal Aid NSW, and on Friday, 15 June the applicant attended a legal advice clinic and he was provided with legal advice regarding any pursuit of an unfair dismissal claim.

[13] On Monday, 18 June 2018, a solicitor from Legal Aid NSW sent the applicant an email which, inter alia, directed the applicant to the IRC as it was mistakenly assumed that the applicant was a Local Government Employee. However, importantly, this email communication included the following; “Please also not [sic] that you must lodge your unfair dismissal claim within 21 days from the date of dismissal.”

[14] On 2 July 2018, the applicant filed an application for relief in relation to unfair dismissal in the IRC. Subsequently, once confirmation of the correct employer of the applicant had been established, the IRC application was withdrawn and the application was filed in this matter on 27 July 2018.

[15] Consequently, the chronology of relevant events has established that the purported dismissal of the applicant occurred on Saturday, 2 June 2018, and therefore, in order to comply with the 21 day time limit, any unfair dismissal application needed to be filed by no later than 25 June 2018. The IRC unfair dismissal application was filed on 2 July 2018 being 7 days after the 21 day time limit period. Subsequently this application was filed a further 25 days later.

The Employer's Case in Support of the Jurisdictional Objection

[16] The employer has submitted that the applicant was not dismissed by the employer on 2 June 2018, and that the applicant requested a separation certificate on 4 June 2018. In any event, the employer has submitted that the applicant’s unfair dismissal claim relies upon his alleged dismissal on 2 June 2018, and therefore he was obliged to file any application for unfair dismissal by 25 June 2018.

[17] The submissions made by Mr Lyons on behalf of the employer asserted that the application that was filed on 27 July 2018, could only be accepted if the Commission was satisfied that there were exceptional circumstances for the delay. The employer submitted that the Commission must be satisfied that exceptional circumstances existed, taking into account the factors set out in subsection 394 (3) of the Act, so as to enable an extension of time to be granted.

[18] The submissions of the employer stated that there were six separate factors that the Commission was required to consider in order to establish any exceptional circumstances, and the applicant had only introduced one of the factors being the reason for the delay. The employer submitted that the applicant endeavoured to cast blame on the Legal Aid NSW office. However, the employer stated that there was nothing exceptional about lodging an unfair dismissal claim in the wrong Tribunal, and that the Commission should treat the applicant’s reason for delay with suspicion.

[19] The employer further submitted that the applicant had failed to explain the delay after meeting with Legal Aid NSW on 15 June before incorrectly filing out of time with the IRC on 2 July 2018. Further, the employer stated that the applicant had also failed to explain the delay after being provided with advice that he should file in the Commission on about 6 July 2018, and before he lodged the claim on 27 July 2018.

[20] The employer submitted that the applicant provided no evidence regarding the merits of his application, and in particular, he did not indicate why the employer’s dismissal decision was unfair. Further, the employer submitted that the length of the delay was some 33 days in this case which represented a period of one and a half times the period of the time limit.

[21] In summary, the submissions made by Mr Lyons on behalf of the employer asserted that having regard to the factors contained in subsection 394 (3) of the Act, the Commission should not be satisfied that there were exceptional circumstances that would warrant an extension of time to bring the application. Mr Lyons submitted that the Commission should not grant the extension of time, and that the jurisdictional objection of the employer should be upheld. The employer submitted that the application should be dismissed accordingly.

The Applicant’s Case in Opposition to the Jurisdictional Objection

[22] The submissions made by the applicant asserted that the application had been filed only one day late because he had been given the wrong forms and advice three times. The applicant stated that he had been given the wrong advice which meant that he had to start all over again in a different department.

[23] The applicant also submitted that the employer had lied on the separation certificate and said that he had been dismissed due to lack of work when they had hired someone to replace him only days later.

[24] In summary, the submissions made by the applicant asserted that the reason for the delay in filing the application involved the incorrect advice that he had been provided with by Legal Aid NSW. The applicant asked that his unfair dismissal claim be accepted because the delay in filing the application was the result of incorrect legal advice and he corrected this mistake as soon as he became aware of it.

Consideration

[25] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established.

[26] In this instance, although there is dispute about whether the applicant was dismissed, the claim for unfair dismissal is reliant upon a dismissal that allegedly occurred on Saturday, 2 June 2018. Therefore, in order to comply with the 21 day time limit, any application for unfair dismissal needed to be made by 25 June 2018. The application taken in this matter was made on 27 July 2018, which is 32 days after the 21 day time limit. However, the applicant filed an earlier application regarding unfair dismissal in the IRC on 2 July 2018. The earlier IRC application was made 7 days after the 21 day time limit.

[27] Documents provided by the applicant and admitted as evidence in the Hearing, included a copy of a Centrelink employment separation certificate dated 8 June 2018, issued by the employer, and specifying that the date that the applicant’s employment ceased was 2 June 2018. Consequently, it was clear to the applicant that his employment had finished on and from 2 June 2018, and he had written confirmation of the termination of employment either by the end of the week after the employment finished, or more likely, earlier in the following week.

[28] By the end of the second week after the termination of employment the applicant had the benefit of legal advice provided by Legal Aid NSW. Importantly, on Monday, 18 June 2018, the first working day of the third week after the termination of employment, the applicant had been provided with email confirmation of legal advice which included the requirement for any unfair dismissal claim to be made within 21 days from the date of dismissal.

[29] Despite the applicant having the benefit of the documented legal advice on 18 June 2018, he did not file the IRC application until 2 July 2018, 7 days late. The IRC application was made in the wrong jurisdiction, and identification and rectification of this mistake was completed on or about 6 July 2018, when Legal Aid NSW provided the applicant with “the forms for the Fair Work Commission.” The application in this matter was then made on 27 July 2018, 32 days late.

[30] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) is in the following terms:

“(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

(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

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

[31] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time.

[32] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[33] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should be a factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.

[34] In this case the delay was 32 days relevant to the 21 day time limit. However, an earlier application taken in the wrong jurisdiction was made 7 days after the 21 day time limit.

Subsection 394 (3) (a) - The Reason for the Delay

[35] In this instance the reason for the delay that was advanced by the applicant involved incorrect legal advice that he had received from the Legal Aid NSW office at Gosford. However, although the IRC application was taken in the wrong jurisdiction, the applicant had the benefit of documentary legal advice provided to him on 18 June 2018, which drew his attention to the 21 day time limit. There was nothing incorrect about this aspect of the legal advice provided to the applicant, and there was no explanation provided for the late lodgement of the IRC application.

[36] The incorrect legal advice was rectified on about 6 July 2018, when the applicant was provided with “the forms for the Fair Work Commission.” However, there was no explanation provided for the further delay before the claim in this Commission was filed on 27 July 2018.

[37] Consequently, there were two periods of delay during the total period of 32 days, and for which incorrect legal advice could not represent the reason for any delay. There was an initial period between 18 June and 2 July which put the IRC application 7 days late. Subsequently, there was a further period of about 21 days during which the applicant had “the forms for the Fair Work Commission” but there was no explanation given for his inaction.

Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect

[38] The applicant first became aware of the dismissal at the time at which he said that he was dismissed, 2 June 2018. Further, on or shortly after 8 June, the applicant was provided with the employment separation certificate which confirmed the termination of his employment. Consequently, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal

[39] There was no evidence that the applicant took any action to directly dispute the dismissal. Therefore I consider that this factor does not assist the applicant.

Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)

[40] The employer appeared to acknowledge that there was no prejudice that could be identified in this instance. Consequently, this factor could be considered to provide some limited assistance to the applicant.

Subsection 394 (3) (e) - The Merits of the Application

[41] This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension was granted.

[42] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly in this instance there was strong suggestion that the unfair dismissal claim was entirely without basis because the applicant had not been dismissed by the employer but instead he had requested that he be provided with an employment separation certificate.

[43] Further, the employer indicated that it would provide evidence that further engagements were offered to the applicant after 2 June 2018. These issues were the subject of the second jurisdictional objection raised by the employer. Consequently, the logical consideration of this factor would not provide support for the granting of an extension of time.

Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position

[44] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[45] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  1. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[46] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  2and the following paragraph from that Decision is particularly helpful:

“[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.”

Conclusion

[47] In this instance the exercise of the discretion to extend time has been required in respect to a delay of 32 days. In this context the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[48] The reason for the delay involved incorrect legal advice which meant that an earlier application was taken in the wrong jurisdiction. Although some delay can be properly attributed to the initial incorrect legal advice, there has been no satisfactory explanation provided for the initial delay which made the IRC claim 7 days late, and the subsequent delay of about 21 days after the applicant was given clear and correct advice to make an application in this Commission.

[49] Further, consideration of the other relevant factors set out in subsection 394 (3) of the Act has not provided any persuasive assistance to the applicant.

[50] Consequently, in this instance exceptional circumstances have not been established. Therefore the application has been made beyond the 21 day time limitation established by subsection 394 (2) of the Act, and no further period may be allowed as the requirements of subsection 394 (3) of the Act have not been met.

[51] The application has been made beyond the 21 day time limitation established by subsection 394 (2) (a) of the Act and it must be dismissed accordingly. An Order dismissing the application shall be issued separately.

COMMISSIONER

Appearances:

Mr R Kelly appeared unrepresented.

Mr D Lyons of Workplace Solutions appeared for the employer.

Hearing details:

2018.

Sydney:

October, 23.

Printed by authority of the Commonwealth Government Printer

<PR701644>

 1   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.