Russell Fernando v Australian HomeCare Services Pty Ltd

[2018] FWC 337

[2018] FWC 337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Russell Fernando
v
Australian HomeCare Services Pty Ltd
(U2017/11928)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 17 JANUARY 2018

Application for an unfair dismissal remedy - extension of time.

[1] On 8 November 2017, Mr Russell Fernando (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is Australian HomeCare Services Pty Ltd (Respondent) (AHCS).

[2] The Applicant commenced employment with the Respondent on 18 February 2016. He was employed as a Service Delivery Manager. He says that his employment came to an end on 14 July 2017. Mr Fernando had resigned from his position some weeks earlier in the expectation that he would be receiving a redundancy package from AHCS.

[3] The application therefore was lodged 96 days out of time.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application will be dismissed.

Legislative Scheme

[5] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] Section 394(3) of the Act provides as follows:

“394 Application for unfair dismissal remedy

…

(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.”

[7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[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.” [Endnotes not reproduced]

[8] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 2

[9] This point was emphasised by the Full Bench in the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 which contained the following statement:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

“[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …” (emphasis added)

[30] This extract must be read in its entirety. The decision goes on to state:

“[12] … The circumstances from the time of the dismissal must be 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.”

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 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. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Background

[10] The matter was listed for conciliation on 28 November 2017 however was unable to be resolved.

[11] On 12 December 2017, directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.394(3) of the Act. The matter was listed for hearing on 12 January 2018.

[12] The Applicant was self-represented at the hearing and gave evidence on his own behalf.

[13] I granted permission for AHCS to be represented by Mr Patrick Ryan of Patrick Ryan Consulting. I accepted that AHCS would not be able to represent themselves effectively. Further, Mr Ryan had previously been employed by AHCS as the National Human Resources Manager.

Matters to be taken into account pursuant to s.394(3)

[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

s.394(3)(a) the reason for the delay

[15] Mr Fernando must provide a credible reason for the whole of the period that the application was delayed. 4 The Commission is required to consider the explanation of the total period of the delay, not only part of it. The delay for the purposes of s.394(3) of the Act is the delay from the expiry of the 21 day period in s.394(2)(a) after the termination date until lodgement of the application.5

[16] Mr Fernando resigned from his position by email providing as follows:

“Dear Rish,

As per the meeting yesterday,

I would like to take the option of taking the package and move forward. My last day of work be (sic) on the 14^th of July.” 6

[17] The copy of the email filed by AHCS was dated 24 May 2017. Mr Fernando did not dispute the contents of this email, however submitted that he sent the email on or around 20 June 2016. Mr Fernando advised that he did not keep a copy of this email. 7

[18] Notwithstanding the above, the parties agreed that Mr Fernando’s last day of employment was 14 July 2017.

[19] Mr Fernando left to go overseas on a holiday two days later and returned to Australia on 31 July 2017. Upon his return he realised he hadn’t been paid the redundancy pay he had been expecting. 8

[20] Approximately 5 days after he returned from overseas Mr Fernando began making a number of inquiries about the non-payment. He contacted the payroll officer in the first instance who advised him to speak to his former manager. His former manager in turn referred him to an administrative assistant in human resources. 9

[21] When he did not receive a response from human resources, Mr Fernando emailed Mr Ryan on 21 August 2017 inquiring about the missing payment. Mr Ryan responded on 22 August 2017 advising Mr Fernando that he had not been made redundant from his position but had in fact resigned and therefore was not entitled to receive a redundancy payment. 10

[22] Mr Fernando then contacted the Commission who advised they were unable to provide legal advice, however directed him to the website and suggested he look at the unfair dismissal forms. Mr Fernando did not lodge a form at this time because he wanted to pursue other avenues.

[23] Mr Fernando thought he could get a lawyer to write a letter to AHCS demanding the payment and that would resolve the matter. He began contacting a number of legal bodies, however his evidence is that he was turned away by all as they were not interested in his matter and none provided advice as to which avenue he should take. 11

[24] During September 2017 Mr Fernando contacted Legal Aid and was advised they could not assist in the matter. He went on the Law Institute of Victoria website however his search returned no results. Mr Fernando contacted Just Relations who advised his application for unfair dismissal would be out of the 21 day lodgement period and they were not interested in taking his case. He then contacted McDonald Murholme who stated they couldn’t assist him because he resigned from his position. 12

[25] On 28 September 2017 Mr Fernando again emailed Mr Ryan outlining his grievance and again seeking to be paid his redundancy pay. 13 He then contacted Jobwatch who advised him to lodge an application for unfair dismissal. Mr Fernando did not lodge an application at this time.

[26] On 4 October 2017, Mr Ryan sent an email to Mr Fernando again advising that he had not been made redundant and all monies owing to him had been paid. 14

[27] Either that same day or the next Mr Fernando again contacted Jobwatch who made him aware that he may have been tricked into resigning and again advised him to lodge an unfair dismissal application.

[28] Mr Fernando again did not lodge the application immediately. It was not until nearly a month later that Mr Fernando decided to lodge his application. Mr Fernando’s evidence was that as his application was already outside of the 21 days he did not think it would make much of a difference if he didn’t lodge it immediately upon receipt of advice to do so.

[29] I accept Mr Fernando made a large number of inquiries in an attempt to seek assistance over the period from when he returned from his overseas holiday to the date he lodged his application. Mr Fernando had been provided with advice about lodging an unfair dismissal application on a number of occasions throughout that period and had failed to act on that advice.

[30] Mr Fernando’s evidence was that he had at least twice been directed to the Commission and was aware of the 21 day time limit for lodging an application. Mr Fernando chose to pursue the payment he thought he was entitled to directly with AHCS rather than lodging an application. Mr Fernando only took the step of lodging the application when he was certain that AHCS would not pay him the redundancy pay had been trying to obtain.

[31] Although it is clear Mr Fernando was unsure as to what application he should lodge he was advised by Jobwatch in October that he could lodge an unfair dismissal application and did not act promptly on that advice.

[32] For this consideration there must be an acceptable reason for the delay 15 and this must be for the whole period that the application was delayed.16 Whilst Mr Fernando has provided his reasons for the delay I am not satisfied that they amount to a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

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

[33] Mr Fernando resigned from his position by email correspondence. He worked out his notice period with his last day being 14 July 2017.

[34] Mr Fernando had the full 21 days from the date of termination to lodge his application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(c) any action taken by the person to dispute the dismissal

[35] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 17

[36] Mr Fernando returned from overseas and noticed he had not been paid a redundancy payment as expected. He initially made inquiries as to his entitlements however did not dispute the circumstances of the redundancy until mid-August 2017. 18

[37] This weighs against a finding that there are exceptional circumstances.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[38] Prejudice to the employer will go against the granting of an extension of time. 19 Mr Ryan submits due to the large lapse in time since Mr Fernando’s resignation and AHCS being a not for profit organisation they would suffer considerable detriment and inconvenience should Mr Fernando be granted an extension of time.20

[39] While I note the Respondent’s submission it goes more to the issue of inconvenience as opposed to prejudice. There will always be a level of inconvenience associated with either party having to prepare to address a claim. I consider this criterion to be neutral.

s.394(3)(e) the merits of the application

[40] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 21 it 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.”

[41] Mr Fernando says on either 19 or 20 June 2017 he attended a meeting held by David Hughes, State Manager in which he was advised that a number of positions within the organisation were to be made redundant. 22 He and others that attended the meeting were told they could volunteer to take a redundancy or the organisation would decide on who should be made redundant by assessing each individual’s performance.

[42] The following day Mr Fernando submits that he sent an email to his manager informing him that he “would like to take the option of taking the package and move forward.” 23 Mr Fernando resigned from his position with the belief that he would be in receipt of a redundancy payment. He worked out his notice period with his last day of employment with AHCS being the 14 July 2017.24

[43] Although Mr Fernando had never been in receipt of any information about redundancy payments or his role being confirmed as being redundant he says he was lured and misled into resigning by AHCS as he thought by resigning from his position he would be entitled to receive a redundancy payment. 25 At no stage during his notice period or during his exit from the organisation did he receive any confirmation that he was to be made redundant, nor was he informed that he would not be receiving a redundancy payment.

[44] Mr Ryan’s evidence was that at no stage was a redundancy confirmed with Mr Fernando and although several roles were made redundant, including his own, Mr Fernando’s role has not been made redundant.

[45] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. 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” 26 for the purpose of determining whether to grant an extension of time to the applicant to lodge an application.

[46] I found Mr Fernando to be an honest and credible witness who was somewhat confused about the redundancy process and his entitlements, however I have adopted the reasoning outlined above. I am not able to make a final assessment of the merits of the matter and accordingly, I find the criterion to be neutral.

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

[47] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 27 as follows:

“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”

[48] Mr Ryan submits that Mr Fernando’s case should be differentiated from those of others who had been granted an extension of time and relies on the decision of Prasad v Alcatel-Lucent Australia 28. Mr Ryan submits that Mr Fernando’s situation is similar in that although he claims not to have been aware of the possibility of pursuing an unfair dismissal, by his own admission he had received advice as early as September 2017 about filing an application and chose not to do so until some months later.

[49] I accept the submission of Mr Ryan and find this criterion weighs against the granting of an extension of time.

Conclusion

[50] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.394(3) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[51] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 29

[52] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mr Fernando’s application to be made. Mr Fernando has not provided a reasonable explanation for the whole of the delay.

[53] An order 30 dismissing Mr Fernando’s application will accompany this decision.

COMMISSIONER

Appearances:

R. Fernando on his own behalf;

P. Ryan for the Respondent

Hearing details:

2017

Melbourne

12 January

 1   [2011] FWAFB 975

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 3   [2016] FWCFB 349

 4   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010)197 IR 403 at 408-9.

 5   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].

 6   Exhibit R3

 7   Exhibit A1

 8   Exhibit A2

 9   Ibid.

 10   Exhibit R3

 11   Exhibit A2

 12   Ibid.

 13   Exhibit R3

 14   Ibid.

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 16   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409

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

 18   Exhibit A2

 19   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 20   Exhibit R1

 21   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

 22   Exhibit A2

 23   Exhibit R3

 24   Exhibit A2

 25   Exhibit A1

 26   Kyvelos v Champion Socks Pty Ltd, Print T2421, [14]

 27   [2015] FWC 8885 at [29]

 28   [2011] FWAFB 1515

 29   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 30   PR599595

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