Ross Keep v Taree Toyota T/A Patrick Auto Group

[2020] FWC 1682

[2020] FWC 1682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Keep
v
Taree Toyota T/A Patrick Auto Group
(U2020/1490)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 27 MARCH 2020

Unfair dismissal application – refusal of application to extend time – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Ross Keep a further period for his unfair dismissal application (Application) to be made against Pattoy Pty Ltd T/A Patrick Auto Group (PAG).

Hearing

[3] On 17 and 23 March 2020, a hearing, by telephone, was conducted in relation to Mr Keep’s application for an extension of time. Mr Keep gave oral evidence in support of his application for an extension of time.

[4] PAG adduced evidence from Mr Craig Dargan and tendered a copy of the separation certificate issued to Mr Keep in December 2019.

Legislative scheme

[5] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

Consideration

Paragraph 394(3)(a) - reason for the delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 7 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,8the Full Bench explained (at [31]) the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[10] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s 394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 9

“[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.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[11] As to credible explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 10

Relevant chronology of events and reasons for delay

[12] Mr Keep commenced employment with PAG on 25 February 2019. Mr Keep was employed by PAG as a full-time General Hand. Part of his duties included washing cars.

[13] On about 25 November 2019, level 4 water restrictions came into place in the area in which PAG conducts the business at which Mr Keep worked. Those water restrictions meant that PAG could not wash cars.

[14] I accept Mr Dargan’s evidence that he had a discussion with Mr Keep on about 25 November 2019 because that was when the level 4 water restrictions came into place. Mr Keep agreed that he had a discussion with Mr Dargan at about that time. Mr Keep says that during that discussion Mr Dargan told him that he did not want him (Mr Keep) to go away thinking that he had been sacked, his job was being left open and he would be re-employed when water restrictions were lifted. Mr Dargan gave the following evidence in relation to his discussion with Mr Keep on about 25 November 2019:

•  Mr Dargan informed Mr Keep that his employment was ending because of the level 4 water restrictions and his entitlements would be paid out;

•  Mr Keep was paid out his accrued annual leave and did not return to work after 25 November 2019;

•  Mr Dargan does not recall saying to Mr Keep that his job was being left open and he would be re-employed when the water restrictions were lifted. Mr Dargan says he did not have authority to make any such statement to Mr Keep. The Dealer Principal was the only person with authority to make such a decision; and

•  Mr Keep was provided with a separation certificate signed by Ms Verna Wilson on 5 December 2019. The separation certificate stated the “date employment ceased” as 4 December 2019. The certificate also states that Mr Keep’s accrued annual leave was paid to him on 4 December 2019.

[15] Mr Keep accepts that he was paid out his accrued annual leave in about the next week after his conversation with Mr Dargan. Mr Keep also accepts that he was provided with the separation certificate, but says he did not receive it from Ms Sarah Meredith of PAG until about mid December 2019. At the time he received the separation certificate, Mr Keep understood that he had been dismissed and believed the date of his dismissal to be 4 December 2019.

[16] In his Application, Mr Keep stated that he was notified of his dismissal on 4 December 2019, his dismissal took effect on 4 December 2019, and his reason for filing his Application outside the 21 day period was as follows:

“Upon dismissal I was told I would be re hired when water restrictions were lifted”.

[17] I prefer Mr Dargan’s evidence over Mr Keep’s evidence to the extent of conflict in relation to their accounts of the discussion on about 25 November 2019. Mr Dargan had a good recollection of when the level 4 water restrictions came into place and what steps he took as a consequence. The two main areas of conflict between their evidence concerning the discussion on about 25 November 2019 were: (a) Mr Keep’s contention that Mr Dargan told him that he did not want him (Mr Keep) to go away thinking that he had been sacked and (b) Mr Keep’s contention that Mr Dargan told him (Mr Keep) that his job was being left open and he would be re-employed when water restrictions were lifted. As to the first of these contentions, Mr Dargan was clear in his recollection of the reason for Mr Keep’s dismissal and that he communicated that reason to Mr Keep during their conversation. Mr Dargan’s recollection is also consistent with Mr Keep not returning to work in the period between 25 November 2019 and 4 December 2019, at which time Mr Keep’s accrued annual leave was paid to him. It is also consistent with the information contained in the separation certificate provided to Mr Keep. I accept that Mr Keep was not dismissed as a result of any deficiency in his performance or conduct at work and he would have understood that to be the case as a result of Mr Dargan’s communication to him of the reason for the cessation of his employment.

[18] As to the second contention, I accept Mr Dargan’s evidence that he did not have authority to make such a statement or promise to Mr Keep. This supports the likelihood that Mr Dargan did not make such a statement or promise to Mr Keep.

[19] On either 17 December 2019 or the morning of 18 December 2019, Mr Keep had a telephone discussion with Mr Dargan, at which time Mr Dargan asked Mr Keep if he wanted some work. Mr Keep agreed. Mr Dargan undertook 28 hours work in the period from 18 to 24 December 2019 and was paid as a casual for that work.

[20] In the period from 25 December 2019 until 31 December 2019, Mr Keep worked for PAG for one day (7.5 hours) and was paid as a casual for that work.

[21] In the period from 1 January 2020 until 7 January 2020, Mr Keep worked for PAG for 22.5 hours and was paid as a casual for that work.

[22] In the period from 8 January 2020 until 14 January 2020, Mr Keep worked for PAG for 14.9 hours and was paid as a casual for that work.

[23] In the period from 15 January 2020 until 21 January 2020, Mr Keep worked for PAG for 8.5 hours and was paid as a casual for that work.

[24] Mr Keep believes that Mr Dargan told him in January 2020 that he would be re-employed as soon as the water restrictions were lifted. I prefer Mr Dargan’s evidence that he does not recall making any such statement to Mr Keep. I accept that Mr Dargan did not have the authority to make such a statement or promise to Mr Keep. This supports the likelihood that Mr Dargan did not make such a statement or promise to Mr Keep.

[25] In about late January or February 2020, Mr Keep observed another, younger person working for PAG, undertaking tasks such as washing cars that Mr Keep would have performed if he was working for PAG. Mr Keep believes it was unfair of PAG to employ this person in circumstances where Mr Keep could have been doing that work and Mr Keep performed well in both his full-time position with PAG and his casual position in December 2019 and January 2020.

[26] In about the first week of February 2020, after the level 4 water restrictions had been lifted, Mr Keep had a conversation with Mr Dargan, at which time Mr Dargan told him that PAG would not be employing anyone in the position of General Hand.

[27] Mr Keep filed his Application in the Commission on 11 February 2020.

[28] I find that Mr Keep’s employment with PAG came to an end on 4 December 2019, as stated in the Application and as contended for by PAG. That was the date on which Mr Keep was paid his accrued annual leave. It is apparent from the evidence given by Mr Dargan and Mr Keep that Mr Keep did not return to work after his conversation with Mr Dargan on about 25 November 2019, and Mr Keep was on annual leave until his employment came to an end on 4 December 2019.

[29] The 21 day time period for Mr Keep to make his Application expired on 27 December 2020. 11 Given that Mr Keep filed his Application on 11 February 2020, the Application was filed 46 days late.12

[30] In accordance with the principles summarised in paragraphs [9]-[10] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 27 December 2019 to 11 February 2020. However, the circumstances from the time of the dismissal on 4 December 2019 must be considered when assessing whether there is credible explanation for the delay, or any part of the delay, beyond the 21 day period.

[31] Even accepting Mr Keep’s belief that he was not told of his dismissal on about 25 November 2019, Mr Keep accepts that he was aware that he had been dismissed when he received his separation certificate in December 2019. Mr Keep also understood at the time he received his separation certificate that the date of his dismissal was 4 December 2019. Although Mr Keep took up casual employment with PAG in December 2019 and January 2020, this was clearly a separate period of employment with PAG and did not alter the fact that his employment relationship with PAG came to an end on 4 December 2019.

[32] I am satisfied that Mr Keep was hopeful of being re-employed by PAG on a full-time basis after the level 4 water restrictions were lifted. However, that did not provide Mr Keep with a credible explanation for the delay in filing his Application.

[33] For the reasons given, this factor (s 394(3)(a)) weighs against a finding of exceptional circumstances and granting Mr Keep an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[34] On about 25 November 2019, Mr Keep first became aware that he would be dismissed. However, I accept Mr Keep’s evidence that it was not until he received his separation certificate in around the middle of December 2019 that he became aware that 4 December 2019 was the date of his dismissal.

[35] Because Mr Keep did not become aware of the date of his dismissal until after it took effect, I am of the view that this factor (s 394(3)(b)) weighs in favour of a finding of exceptional circumstances and granting an extension of time.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[36] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 13

[37] Mr Keep was in casual employment with PAG in December 2019 and January 2020. He raised with Mr Dargan in about the first week of February 2020 whether he would be re-employed on a full time basis. I do not consider this to be action taken by Mr Keep to dispute his dismissal. Apart from these matters, there is no evidence that Mr Keep took any step prior to 11 February 2020 to dispute his dismissal.

[38] This factor (s 394(3)(c)) weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[39] Prejudice to the employer will weigh against granting an extension of time. 14 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.15

[40] A long delay gives rise “to a general presumption of prejudice”. 16

[41] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 17 PAG did not adduce any evidence on the issue of prejudice.

[42] Noting that the delay was 46 days, I am satisfied that there would be no greater prejudice to PAG caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to PAG is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[43] There does not seem to be any dispute that Mr Keep was performing well as an employee of PAG. The separation certificate states that the reason for the dismissal was “shortage of work”. No evidence has been adduced as to whether the consultation requirements in any applicable industrial instrument were complied with. Further, there is a suggestion that Mr Keep’s redundancy may not have been bona fide, in light of the decision by PAG not to re-employ Mr Keep after the level 4 water restrictions were lifted and another employee was apparently engaged by PAG.

[44] In the result, I am not able to say that Mr Keep’s unfair dismissal claim is without merit. In all the circumstances, I consider this criterion (s 394(3)(e)) to weigh slightly in favour of a finding of exceptional circumstances and granting an extension of time.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[45] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 18 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[46] No evidence was adduced and no submissions were made regarding fairness as between Mr Keep and other persons in a similar position. In all the circumstances, I consider this factor (s 394(3)(f)) to be a neutral consideration in determining whether to grant an extension of time.

Conclusion

[47] Having taken into account each of the factors referred to in s 394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting consideration of whether I should exercise my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by Mr Keep.

[48] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Keep, on behalf of himself.

Ms Eldridge, Employee Relations Advisor, MTA NSW, on behalf of PAG.

Hearing details:

2020.

Newcastle:

17 & 23 March.

Printed by authority of the Commonwealth Government Printer

<PR717901>

 1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 4 [2011] 203 IR 1.

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605

 7   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 8   [2016] FWCFB 349

 9   [2018] FWCFB 3288 at [35]-[45]

 10   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 11   That is, 21 days from 4 December 2019 (not including 4 December 2019 or the public holidays on 25 and 26 December 2019) is 27 December 2019.

 12   11 February 2020 is 46 days after 27 December 2019.

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 14   Ibid.

 15   Ibid.

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

 17   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 18   [2016] FWCFB 6963