Ross Marshall v Compass Group Remote Hospitality Services Pty Ltd T/A ESS

[2019] FWC 6985

[2019] FWC 6985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Marshall
v
Compass Group Remote Hospitality Services Pty Ltd T/A ESS
(U2019/5582)

DEPUTY PRESIDENT BEAUMONT PERTH, 15 OCTOBER 2019

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – application dismissed.

[1] Mr Marshall applied for an unfair dismissal remedy having been dismissed by Compass Group Remote Hospitality Services Pty Ltd T/A ESS (the Compass Group), on 7 May 2019. His application was received by the Commission on 21 May 2019 and therefore Mr Marshall considered that he had made his application within the requisite time frame set by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).

[2] However, according to the Compass Group, Mr Marshall’s dismissal took effect on 8 March 2019, and therefore it objected to the application on the basis the application was filed outside the 21-day period prescribed by the Act. This decision deals with that objection and Compass Group’s application to dismiss the application based on Mr Marshall’s repeated non-compliance with the directions of this Commission.

[3] Regarding the out of time objection, s 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[4] The first issue to be determined is the date that the dismissal took effect, given this is contested. If the application is found to have been made out of time, the application can only proceed if Mr Marshall is permitted an extension of time in which to make the application.

[5] Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

If the circumstances are exceptional, the consideration turns to whether it is fair and equitable for an extension to be granted.

Was the application made within 21-day after the dismissal took effect

[6] According to Compass Group, Mr Marshall was notified of his dismissal in writing on 22 February 2019 (the letter). The letter stated that a recent incident on the BHP Packsaddle site had been investigated and Mr Marshall was found to have breached Compass Group’s Food Safety Program. The letter explained that because of the breach, BHP had withdrawn Mr Marshall’s site access and accommodation. Two weeks’ formal notice was provided and Mr Marshall was notified his employment would be terminated with effect from Friday, 8 March 2019.

[7] Mr Marshall contended that his communications with Compass Group Human Resources and Recruitment Departments about his redeployment to another position had led him to believe that he was still employed until approximately the time when he made his application to the Commission, and that no formal termination had occurred. In this respect he referred to a discussion had with Mr Andrew Kemp after having received a first and final written warning for the BHP Packsaddle site incident. It was Mr Marshall’s viva voce evidence that Mr Kemp had informed him to sign the first and final written warning and disregard the termination statement because he would be redeployed.

[8] On the face of it, it does seem odd that there would be consideration of redeployment in circumstances where an employee had been dismissed; however, the letter provides the following explanation:

As contemplated by your employment contract, during the notice period, we will look for alternative employment for you at other Compass Group operations and endeavour to relocate you to another position on another site, subject to the availability of positions for which you are qualified and able to fill. We will contact you to discuss a possible new position and continuation of your employment if a suitable vacancy is identified. During your notice period, you will be expected to undertake any necessary site induction or medical assessment requirements that are necessary to secure the new position. Note that a new position may result in different terms and conditions and will require you to sign a new contract of employment.

If we are unable to find you an alternative position during the notice period or you decline an offer, your employment with Compass Group will automatically terminate on Friday, 8 March 2019. Your final pay and accrued entitlements will be paid shortly thereafter. If you are part way through a recruitment process for a new role on Friday, 8 March 2019; your employment will still terminate on that date; however, the recruitment process will continue and if you are successful, you will be re-employed by Compass Group with your service continuous and personal/carer’s leave balance re-instated. (bold my emphasis)

[9] The Compass Group submitted evidence which included several emails including one of Mr Dave Nguyen, Project Manager – Relief ESS Support Services Worldwide, dated 23 February 2019, who wrote to Mr Marshall informing him that the Compass Group would look to redeploy Mr Marshall elsewhere in the business and asked him to complete a redeployment form. Over the course of emails, dated 25 February 2019 and 27 February 2019, Mr Nguyen again requested from Mr Marshall the redeployment form. On 28 February 2019, Mr Marshall emailed the redeployment form to Mr Nguyen.

[10] It is apparent from the evidence submitted that come 8 March 2019, Mr Marshall had not been placed into a new position within the Compass Group. An email dated 17 March 2019, from a Recruitment Advisor of the Compass Group, refers to Mr Marshall having applied for a position of a FIFO Chef vacancy, and questions whether Mr Marshall is still interested in the position. On 27 March 2019, Mr Marshall emailed a recruitment email address of the Compass Group asking about progress getting to a new site. A further email appears to have been sent by Mr Marshall on 29 March 2019 to Mr  Kemp querying why the redeployment was taking a while. On 3 April 2019, Mr Kemp informed Mr Marshall by email that a redeployment form had been sent to the Recruitment Advisor, and on 3 April 2019, Mr Marshall emailed a response of ‘thank you’.

[11] Mr Marshall gave evidence that he was told numerous times by the Recruitment Advisor and Mr Kemp that his redeployment was progressing and attached emails to his witness statement from both the Recruitment Advisor and Mr Kemp, evincing the same. Furthermore, Mr Marshall referred to being sent for a medical assessment for his redeployment on 8 April 2019. Mr Marshall submitted that his correspondence with both the Compass Group’s Human Resources and Recruitment Departments had led him to believe he was still employed and would be redeployed, and therefore no formal termination had occurred.

[12] While it may be the case that Mr Marshall held a belief concerning his employment status, the letter clearly articulated when the dismissal would take effect, and what would be the status of employment if Mr Marshall was in the recruitment process for a new role, or where a new role had not been secured. There is the indubitable evidence that Mr Marshall was notified of his dismissal; Mr Marshall conceded he received the letter a couple of days after 22 February 2019.

[13] There is no evidence to suggest an alternative position was found during the notice period. Further, while Mr Marshall may have been communicating with a Recruitment Advisor and Mr Kemp this did not in turn mean that Mr Marshall’s dismissal was negated. I have therefore concluded that Mr Marshall’s dismissal took effect on 8 March 2019.

Consideration

[14] An applicant has a considerable onus to convince the Commission to exercise the discretion to allow an extension of time. 2 In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty),3 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.4 Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[15] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 5 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 can be considered exceptional.6

[16] In the recent decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 7 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

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. 8

[17] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

Reasons for the delay in filing the application

[18] Consideration turns to whether Mr Marshall has provided a credible reason for the whole of the period that his application was delayed. 9 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.10 It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.11

[19] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 12 Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree.13

[20] As would now be evident, Mr Marshall considered he had made his application in the requisite timeframe. However, he did proceed to give evidence that the delay in lodging his application arose because of the illness of his sister, who had most unfortunately suffered a purported stroke, and stress from the workplace bullying that Mr Marshall said he had been subjected to whilst working at the BHP Packsaddle site. I have considered these reasons. The Commission was informed that Mr Marshall’s sister had a stroke on 11 July 2019, some time after the application was made. There was no further evidence, save that which Mr Marshall said, to support his assertion that he was suffering from a mental illness and receiving treatment for it. It is not the case that I disbelieve Mr Marshall’s account of his mental illness. However, there is insufficient evidence before me to consider it constitutes a reason for the delay, or even part of the delay, in lodging his application, without more than Mr Marshall’s assertion.

[21] Having considered the totality of the evidence, I have found no plausible or credible reasons were advanced for the delay. Accordingly, this factor weighs against granting Mr Marshall an extension of time.

Whether Marshall became aware of the dismissal after it took effect

[22] I am satisfied that at all material times from the time Mr Marshall was notified of his dismissal until the dismissal took effect, and even in the period from 8 March 2019 until the making of the application, Mr Marshall knew he had been dismissed. This is evident from Mr Marshall’s acknowledgement of receipt of the letter. This factor weighs against granting Mr Marshall an extension of time.

Action taken to dispute the dismissal

[23] The Compass Group referred to Mr Marshall’s final pay having been processed on 3 April 2019 and that no further payments were made to him after this time. According to the Compass Group, Mr Marshall did not raise any challenge regarding the cessation of his pay between the time of his final pay on 3 April 2019 and the date of lodgement of the application on 21 May 2019.

[24] By email dated 24 February 2019, Mr Marshall asked Mr Nguyen who he could speak to ‘in regards to having this grossly over ramificationalised [sic] and highly discriminatory decision reversed in regards to all BHP sites’.

[25] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 14 I have considered all the evidence in this respect, and while it is evident that Mr Marshall enquired about who he could speak to regarding a reversal of site access withdrawal, the evidence is insufficient to premise a finding that Mr Marshall contested his dismissal. An enquiry of whom one can speak to does not equate to contesting or disputing one’s dismissal. I therefore consider the factor neutral in so far as it favours an extension of time.

Prejudice to the employer

[26] I cannot identify any particular prejudice that the Compass Group would accrue if an extension of time were to be granted.

Merits of the application

[27] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[28] In Kornicki v Telstra-Network Technology Group,  15 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:

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. 16

[29] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application. 17

[30] I observe that the evidence led by both the Compass Group and Mr Marshall was limited with respect to any argument regarding merits. From what I have written above this is not unsurprising, and my observation should not be construed as criticism. It is evident, for example, that Mr Marshall was resoundingly fixed with his view that his application was made in the requisite period and therefore his attention was predominately focused on this argument rather than addressing all of the factors in s 393(3). This is notwithstanding guidance given to the parties prior to the hearing. It follows that I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

[31] Applications to extend time generally turn on their own facts. 18 The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Marshall and other persons in a similar position.

[34] I consider this to be a neutral consideration in the present matter.

Conclusion

[32] The criteria in s 394(3) of the Act have been carefully considered. I do not consider, based on the material provided, that there were satisfactory reasons advanced as to why the application was not lodged within the statutory time limit. On balance, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mr Marshall’s application to be made. Mr Marshall’s circumstances were not out of the ordinary course, unusual, special or uncommon and he has not provided a reasonable explanation for the whole of the delay. In my view, the circumstances of this case are not exceptional, either individually or when considered together and therefore I do not consider it is fair and equitable for an extension to be granted.

[33] I decline to grant an extension of time under s 394(3). Accordingly, the Applicant’s application under s 394 of the Act is dismissed.

[34] Given the conclusion reached, I have not traversed in detail Compass Group’s application to dismiss Mr Marshall’s application for non-compliance with the directions issued.

[35] I note that the directions issued on 19 July 2019, required Mr Marshall to file his material by 30 July 2019. Chambers sent an email to Mr Marshall on 1 August 2019, notifying him of his non-compliance with the directions. On that same date Mr Marshall responded notifying Commission that he required an extension because his sister was in the Intensive Care Unit. Chambers sent an email to Mr Marshall on 2 August 2019 requesting evidence to support his request. No such evidence was provided. There was further correspondence on the file; however, in short, a directions hearing was held on 20 August 2019, at which Mr Marshall was directed to file a witness statement or statutory declaration explaining his non-compliance with directions, by 22 August 2019. Mr Marshall complied with the direction and in addition filed his materials regarding the jurisdictional objection.

[36] I consider that there was no prejudice to either party by providing Mr Marshall and thereafter the Compass Group, time to be able to properly prepare for, and address the jurisdictional objection. In circumstances where Mr Marshall had informed Chambers of his sister’s ill health, and of having secured a fly in fly out position with another employer, I considered it appropriate to allow him a reasonable opportunity to prepare for, and put his case in opposition to his application being dismissed on a jurisdictional ground. It was not, however, the case that the Compass Group’s submissions were absent merit; the case was finely balanced. However, having taken the trouble to have provided a statutory declaration attesting to his reasons for non-compliance and apologising for the same, I determined that Mr Marshall’s non-compliance with the directions did not warrant the dismissal of his application.

DEPUTY PRESIDENT

Appearances:

R Marshall, Applicant

L D’Ascanio of the Respondent

Hearing details:

2019.

Perth (by phone conference)

October 10.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 at [20].

 3   [2011] FWAFB 975.

 4 Ibid at [15].

 5 Ibid at [13].

 6   Ibid.

 7   [2018] FWCFB 901.

 8 Ibid at [38].

 9   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, at 408-9.

 10   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 at [10].

 11   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] to [31].

 12   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [39].

 13   Ibid.

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

 15 (1997) 140 IR 1, per Ross VP, Watson SDP and Gay C.

 16   Ibid.

 17   Kyvelos v Champion Socks Pty Ltd, [2000] AIRCFB Print T2421 at [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 18   Morphett v Pearcedale Egg Farm [2015] FWC 8885.