Ryan Prentice v Twentieth Super Pace Nominees Pty Ltd T/A Sct Logistics

[2018] FWC 6830

[2018] FWC 6830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Prentice
v
Twentieth Super Pace Nominees Pty Ltd T/A SCT Logistics
(U2018/8286)

DEPUTY PRESIDENT BEAUMONT PERTH, 13 NOVEMBER 2018

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

[1] This decision concerns an application made by Mr Ryan Prentice (Mr Prentice) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The respondent, Twentieth Super Pace Nominees Pty Ltd trading as SCT Logistics (SCT Logistics), objected to the application on the basis that it was filed outside the 21 day period prescribed by s 394(2).

[2] A hearing concerning SCT Logistics’ objection was listed on 7 November 2018 and the matter proceeded by way of a telephone hearing. Mr Prentice appeared unrepresented, and Mr Broadbent appeared for SCT Logistics. Mr Prentice gave evidence on his behalf and SCT Logistics simply sought to tender its submissions observing that the date the dismissal took effect and the date of filing the application were not in contention.

[3] Section 396 of the Act provides that the Commission must decide four matters before considering the merits of an unfair dismissal application. One of the four preliminary (initial) matters that the Commission must decide before considering the merits of an application is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[4] Having heard the matter, I have declined to grant an extension of time under s 394(3). Accordingly, Mr Prentice’s application for an unfair dismissal remedy is dismissed. The reasons for my decision follow.

Background

[5] Mr Prentice commenced employment with SCT Logistics on 1 January 2016 in the position of Business Development Manager. On 12 July 2018, Mr Prentice was dismissed by way of redundancy. He received payment in lieu of notice of 4 weeks, a redundancy payment amounting to 10 weeks’ pay, and accrued entitlements.

[6] It was Mr Prentice’s evidence that for at least a week following his dismissal his head was in a haze. Mr Prentice gave evidence that the following week he was trying to find employment because he had a family to support and for that he was unapologetic. His family came first.

[7] Mr Prentice tendered into evidence three medical certificates. The first medical certificate of 3 September 2018 set out that Mr Prentice was ‘unfit for work from 27 July 2018 inclusive, due to medical reasons’. The second medical certificate of 3 September 2018 provided that Mr Prentice ‘will be unfit for work from 30 July 2018 inclusive, due to medical reasons’. A third medical certificate of 30 August 2018 covered the period of 2 August 2018 to 5 August 2018 inclusive and stated that Mr Prentice ‘will be unfit to continue his usual occupation’. It was Mr Prentice’s evidence, which was not contested, that his usual duties were, when employed, mainly clerical duties. 1

[8] The medical certificates did not expand on the illness that Mr Prentice was suffering. However, Mr Prentice’s evidence was that during the periods referred to in the medical certificates, he was taking antibiotics, a steroid inhaler, cough medicines and pain killers. 2 Throughout the relevant period he experienced dizziness, blurred vision, shortness of breath, coughing until vomiting, drowsiness, and coughing up large volumes of phlegm.3

[9] Mr Prentice’s unfair dismissal application was filed with this Commission on 10 August 2018. There was no explanation for the delay in filing between 6 August and 10 August 2018, save that Mr Prentice made the application when he felt well enough to do so.

Mr Prentice’s submissions

[10] Mr Prentice submitted that he knew that he was out of time to make the application for an unfair dismissal remedy, but he had medical reasons for the delay in completing the requisite documentation and filing it in time. Mr Prentice advanced that he was extremely sick and could not do a lot of his duties that he otherwise would have undertaken at the workplace or at home. It was Mr Prentice’s view that there were exceptional circumstances that warranted an extension under s 394(3).

[11] It was Mr Prentice’s further submission that if one were to deduct the period in which he was ill (that was covered by medical certificates) from the 21 days prescribed by s 394(2)(a), he had made the application within 20 days.

SCT Logistics submissions

[12] In short, SCT Logistics submitted that there was no evidence presented that showed there were exceptional circumstances in the first 14 to 15 days of the 21 day period in which Mr Prentice could have submitted his application. While it may have been the case that Mr Prentice did not respond well to his dismissal and had experienced a bit of a head spin, SCT Logistics asserted that becoming upset by a decision of an employer could not possibly justify a finding that there were exceptional circumstances. Further, Mr Prentice spent the second week of the relevant period seeking alternative employment, which SCT Logistics contended is not a circumstance that is exceptional.

[13] The medical certificates that Mr Prentice provided only covered part of the period of delay and importantly did not extend to the period of 5 August 2018 to 10 August 2018. There was no evidence presented, according to the SCT Logistics, that illness precluded Mr Prentice from making the application on the expiry of the medical certificate.

Extension of the 21 day period

[14] Consideration now turns to whether to extend the 21 day period within which Mr Prentice’s unfair dismissal application was to be brought.

[15] In order for Mr Prentice’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time to make the application under s 394(3). This section 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.

[16] It has been said that proceedings not commenced in time should not be entertained. 4 However, the Act has given the Commission discretion to extend the prescribed period for the making of an unfair dismissal application. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.5

[17] In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time. 6 While considering the general protection provisions of the Act, the reasoning in Nulty 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.

[18] 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. 7 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.8

[19] In the recent decision of the Full Bench in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters clarification was provided regarding the assessment of exceptional circumstances. 9 While the Full Bench considered s 366(1), the observation remains relevant here:

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. 10

[20] 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 submissions in relation to the question of whether there were exceptional circumstances.

Reason for the delay

[21] In Pottenger v Department of Caffiene t/as Two Feet First, 11 the Deputy President observed that 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,12 or a reasonable explanation.13 It is not, however, the case that the applicant ‘needs to provide’ an acceptable, reasonable, or for that matter credible explanation.14

[22] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 15 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 and insight. 16

[23] Mr Prentice provided medical certificates that applied to part of the delay period, but not all. There was an initial period of 14 days in which Mr Prentice said he was contending with the loss of his employment and thereafter was applying for alternative employment. Exceptional circumstances turn on a circumstance that does not occur in the ordinary course, is unusual, special, or uncommon.

[24] Upset caused by the decision of an employer to terminate employment cannot justify a finding of exceptional circumstances and for that matter neither can the endeavour of searching for alternative employment. Inevitably, the loss of a job will for some, and perhaps for many, cause distress. This is not unusual, special or uncommon. 17 A search for alternative employment is pragmatic and for most a necessary pursuit arising from the status of finding oneself suddenly unemployed. However, while the search for alternative employment can require a degree of effort, it is an effort that for the most part is far from all consuming and in the circumstances of this case does not explain why an application for an unfair dismissal remedy could not have been made. Clearly, Mr Prentice had the mental fortitude in the second week of the relevant period to have made such an application, if he was similarly able to search for work.

[25] For the period of 27 July, 30 July and 2 to 5 August 2018 (inclusive), Mr Prentice was certified as unfit. Mr Prentice said that he organised by telephone with the relevant medical practices to obtain the medical certificates dated 30 August 2018 and 3 September 2018, once he became aware that medical reasons were needed to explain the delay for making the application. I am satisfied that Mr Prentice was in fact unfit during this period and have not drawn an adverse conclusion from the point made that the medical certificates for 27 July 2018 and 30 July 2018 were dated 3 September 2018.

[26] However, the delay extended to the making of the application on 10 August 2018. Up until 5 August 2018, Mr Prentice was certified as unfit and that has been considered. Nevertheless, there is no plausible explanation as to why the application could not have been made during the period of 6 August to 9 August 2018 if Mr Prentice’s status of being unfit concluded on 5 August 2018.

[27] While I consider that Mr Prentice’s unfit state was a reason for the delay for the period of 27 July, 30 July and 2 to 5 August 2018 (inclusive), I have found that there is no reasonable explanation why the application could not have been filed within the first 14 days of the dismissal taking effect and thereafter in the period of 6 August to 9 August 2018. Mr Prentice’s submission that the application was made within 20 days if one was to deduct the time in which he was unfit from the period demonstrates a misperception regarding the operation of ss 394(2) and (3).

[28] In Donna Muir McMeeken v Action Industrial Catering Pty Ltd (McMeeken) the Full Bench upheld the decision of the Commissioner at first instance who had determined that there were not exceptional circumstances that would warrant an extension of time for the making of the application. 18 The Commissioner found that whilst there was an acceptable explanation for some of the delay in making the application (the applicant faced serious personal difficulties) there was no such explanation for the majority of the delay period. The applicant had attributed her delay in making the unfair dismissal application to her incapacitation due to ill health and hospitalisation.

[29] In light of my findings, and having considered the decision of McMeeken I can only conclude that the reason for the delay weighs against allowing an extension of time for Mr Prentice to make his application. 19

Whether the person first became aware of the dismissal after it had taken effect

[30] Mr Prentice was informed of his dismissal on 12 July 2018 and does not contend this to be a relevant consideration for the delay in making his application.

Action taken to dispute the dismissal

[31] On the evidence before the Commission there is no indication that Mr Prentice took steps to dispute his dismissal.

Prejudice to the employer

[32] It is not apparent that there is any particular prejudice that SCT Logistics would face if an extension of time were to be granted. At the hearing, SCT Logistics submitted that it was a neutral factor; a submission with which I agree.

Merits of the application

[33] 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 attention is then directed to whether the dismissal was a case of genuine redundancy and if it was not, then whether the dismissal was unfair.

[34] The jurisdictional objection that Mr Prentice’s dismissal was by way of genuine redundancy has not been fully tested. The factual contentions and the merits of the objection more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded.

[35] SCT Logistics has asserted that as a Business Development Manager, Mr Prentice was not covered by a modern award and an enterprise agreement did not apply to his employment. The letter of termination attached to the Employer Response (Letter of Termination), makes no reference to consultation having been conducted other than to reference a discussion held on the same day as the dismissal. It is not however, apparent from the material on file or submissions made, that SCT Logistics was obliged to consult Mr Prentice about the redundancy. 20The Letter of Termination does reference efforts to redeploy Mr Prentice to a suitable alternative role although Mr Prentice submits that SCT Logistics did not take any steps to try and find a suitable alternative role for him within the business. Further, Mr Prentice appears to be contending the redundancy of his position was a ruse and there were other reasons for his dismissal.

[36] SCT Logistics submitted that based on the information provided in the application and response it did not appear that Mr Prentice’s application had much prospect of success. I am unable to draw that conclusion based on the material before me. I have formed the view that I am not positioned to arrive at a conclusion regarding the merits of the application or for that matter, the jurisdictional objection raised by SCT Logistics. I therefore consider this factor to be neutral.

Fairness as between the applicant and other persons in a similar position

[37] As observed, the absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 21 Where an explanation provided for part of the delay is found to be implausible this, in my view, equally weighs against granting an extension in such assessment.22

Conclusion

[38] The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters in s 394(3) and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.

[39] Having regard to all of the matters that I am required to take into account under s 394(3), I am not satisfied that the requisite exceptional circumstances exist. Whilst I agree there is an acceptable explanation for part of the delay in making the application there is no such acceptable explanation for the remainder.

[40] I have found that the other factors in s 394(3) are neutral when considering whether they weigh in favour of granting an extension. However, in my view, the circumstances of this case are not exceptional when considered together. I have concluded that it is not fair and equitable for an extension to be granted.

DEPUTY PRESIDENT

Appearances:

Ryan Prentice on his own behalf

Colin Broadbent for the Respondent

Hearing details: Wednesday, 7 November 2018

Printed by authority of the Commonwealth Government Printer

<PR702078>

 1 Witness Statement of Ryan Prentice [1].

 2 Witness Statement of Ryan Prentice [2].

 3 Witness Statement of Ryan Prentice [2].

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

 5   Ibid.

 6   [2011] FWAFB 975 [15].

 7 Ibid [13].

 8   Ibid.

 9   [2018] FWCFB 901.

 10 Ibid [38].

 11   [2018] FWC 3403.

 12   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9].

 13   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64 [16].

 14   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901.

 15 Ibid [39].

 16   Ibid.

 17   Ms Susan Rose v BMD Constructions Pty Ltd[2011] FWA 673.

 18   [2012] FWAFB 5933.

 19 Ibid [39].

 20   Fair Work Act 2009 (Cth) s 389(1)(b).

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

 22   Julieanne Lee v Broadspectrum Australia Pty Ltd [2018] FWC 6726.