Ryan Smith v Lychee River Pty Ltd T/A Bourke Riverside Motel
[2023] FWC 52
•20 JANUARY 2023
| [2023] FWC 52 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ryan Smith
v
Lychee River Pty Ltd T/A Bourke Riverside Motel
(U2022/9257)
| COMMISSIONER CAMBRIDGE | SYDNEY, 20 JANUARY 2023 |
Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.
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 made by Ryan Smith (the applicant) and the respondent employer is Lychee River Pty Ltd T/A Bourke Riverside Motel (the employer).
The application was lodged with the Fair Work Commission (the Commission) at Sydney on 14 September 2022. The application indicated that the dismissal of the applicant took effect on 18 August 2022. However, a subsequent communication from the applicant dated 8 November 2022, stated inter alia, “I had been dismissed on Friday 19th of August”.
Consequently, the application was made either 6 days after the 21 day time limit prescribed by subsection 394 (2) of the Act if the date of dismissal provided in the application was correct, or alternatively, the application was made 5 days late if the date of dismissal stated by the applicant in the 8 November communication was correct. It should be noted that the employer asserted that the applicant was not dismissed at all but failed to attend for work after 17 August 2022.
On 19 October 2022, the employer filed a response to the application (Form F3) which identified inter alia, a jurisdictional objection to the application on the basis that the application, filed on 14 September 2022, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection).
During a Pre-Hearing Conference/Conciliation proceeding conducted on 6 October 2022, attempts to reach a conciliated settlement of the matter were unsuccessful. The Commission issued Directions which required the Parties to file and serve evidence and submissions in respect to the out of time objection, and to also provide clarification of whether they were content for the out of time objection to be determined upon the documentary material which had been filed, or alternatively if either Party requested a Hearing.
Subsequently the Parties have provided evidence and their respective submissions regarding the out of time objection, and on 7 December 2022, the employer provided email confirmation that they were content to have the out of time objection determined upon the filed documentary material. On 9 December 2022, the applicant filed and served an email that confirmed that “…I wish for the matter to be the subject of a Hearing or either have the Jurisdictional Objection determined upon the filed documentary material.” Consequently, the determination of the out of time objection has been provided upon careful examination and consideration of the filed documentary material which has been submitted by the Parties.
Relevant Factual Background
The applicant had worked for the employer for just over 1 ½ years. The applicant worked as a gardener/handyman at the employer’s motel located in the New South Wales town of Bourke. The engagement of the applicant was described as and paid as a “casual”.
From the limited material that has been provided, it appeared that on either Wednesday 17, or Thursday, 18 August, or Friday 19, August 2022, the applicant was at work when he was rebuked by his immediate manager, Dean Miller. The subject of the applicant’s censure seemed to concern the applicant smoking whilst in the vicinity of the motel premises and not engaging in his duties when smoking. The applicant treated the verbal reprimand from Mr Miller to constitute his dismissal from employment.
Shortly after the unpleasant discourse between the applicant and Mr Miller, the applicant contacted the employer’s owner, Scott Pottle, and he protested about his treatment from Mr Miller. On Saturday, 20 August 2022, Mr Pottle met with the applicant in an attempt to resolve the workplace conflict. However, it appeared that Mr Pottle advised the applicant that upon his return to work on Monday, 22 August 2022, he would be subject to a performance review. The applicant was not happy with this outcome, and he then got in touch with a few solicitors.
On 31 August 2022, the applicant sent the following text message to Mr Pottle:
“Hi Scott, just wanting to let you know I’ve gotten abit [sic] of legal advice as already told about what has happened on Friday with the loss of hours/days, assault & bullying, being forced to be put on Centrelink & what has been happening over the last 18months, they have advised me to contact FairWork & I am in the process of that. This is also the reason I haven’t returned to work.
Ryan”
Mr Pottle sent the following text message response to the applicant:
“Thanks Ryan. Take care mate.”
On 6 September 2022, the applicant apparently received advice from one of the solicitors that he had contacted that he should submit an unfair dismissal claim.
On 14 September 2022, the applicant filed his claim for unfair dismissal remedy which was made either 5 or 6 days after the 21 day period following the purported dismissal that was treated to have occurred on either 18 or 19 August 2022.
The Applicant’s Case in Support of an Extension of Time
In answer to question 1.6 in the application document, the reason for the delay with the filing of the unfair dismissal claim was stated to be, “Unaware of 21-day lodgement notice – I have only just been advised by Solicitor what action to take.” Subsequently the applicant provided the Commission with a document dated 26 September 2022, which relevantly stated:
“I am addressing the reason as to why I did not respond within the 21 days. I was waiting for the direction and advice from the solicitor in which way I should proceed with the issues concerning this matter. The solicitor had only informed me of which actions to take the week before and I think the advice I received from the solicitor came out of the time frame. I was also looking for jobs as my financial situation could have put me as becoming homeless and being behind on all my present financial commitments.”
The applicant also provided documentary material dated 8 November 2022, to support a finding that there were exceptional circumstances upon which the Commission should grant an extension of time, and this material included submissions in support of that outcome.
The submissions made by the applicant included mention of four main reasons for the delay in submitting the application. The first of the identified main reasons for the late lodgement stated that the applicant was not aware of the 21 day timeframe and that he had participated in a meeting with the employer on Saturday, 20 August, but was not happy with the outcome of that meeting. The applicant then stated that he got in contact with a few solicitors before being advised on 6 September to submit an unfair dismissal application.
The second main reason included in the applicant’s submissions stated that he was not well educated, and that he needed to get support with lodging the application. The applicant further stated that the only person who could provide support to him had to care for children and that meant that they did not get much spare time to assist him with the application.
The third main reason advanced by the applicant involved the process of looking for jobs as the applicant’s financial situation and his current financial commitments could have meant that he became homeless.
The fourth main reason for the delay which the applicant included in his submissions stated that he did not have access to a computer or Wi-Fi/Internet.
The applicant included submissions which stated that he sincerely apologised for being late in submitting the unfair dismissal application. Further, the applicant stated that he took full responsibility for the delay and he made a commitment that the mistake would not be repeated in the future.
The Employer's Case in Opposition to an Extension of Time
The employer relied upon the material contained in the Form F3 – Employer response to unfair dismissal application, together with an email communication sent to the Commission on 5 December 2022.
The material provided by the employer asserted that the reasons provided by the applicant for the delay were not acceptable and could not establish exceptional circumstances to warrant an extension of time. In particular it was asserted that, taking into account all of the relevant matters for consideration, the Commission should decline to exercise its discretion to grant an extension of time.
The material provided by the employer also included the following statement:
“The employee was the subject of a formalised Performance review and Subsequent performance improvement Plan. He was informed to attend work as normal on the following Monday after the meeting. He failed to attend the workplace as instructed. We later found out that he had gained employment with another employer.”
The employer also included the following statement in its communication of 5 December 2022: “We object to the applicant’s request for an extension of time however cannot provide any support material to that effect other than the information that we have provided on the form 3.” The employer further stated that it did not feel that the reasons that the applicant had provided for the delay were acceptable and that the applicant had not fulfilled the requirement to establish exceptional circumstances.
Consideration
Subsection 394 (2) (a) of the Act stipulates that an application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) allows for an extension of the 21 day time period if, pursuant to subsection 394 (3), exceptional circumstances are established.
In this case, the application was filed on 14 September 2022, which was some 27 days after the day on which the application stated that the dismissal took effect, 18 August 2022. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application stated that it was made 6 days after the expiry of the 21 day time limit.
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) of the Act 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
(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.”
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 limit.
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, 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.
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 should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.
In this case the delay was 6 days relevant to the 21 day time limit. Consequently, the period of the delay of a further 6 days in the context of a 21 day time limit could be appropriately described as a moderate delay in the context of the statutorily prescribed time limit.
Subsection 394 (3) (a) - The Reason for the Delay
In this instance, the reasons for the delay that were advanced by the applicant involved firstly, he was not aware of the 21 day time limit, and secondly, the applicant was not well educated and required assistance to complete the application, and thirdly, the applicant said that he was looking for other work, and fourthly, the applicant said that he did not have access to a computer or Wi-Fi/Internet.
Consideration of the reasons for the delay in this instance should be undertaken in the context that there was uncontested evidence that the employer did not provide any written advice of confirmation of dismissal but instead it had sought to have the applicant continue in employment albeit subject to some disciplinary performance review. Consequently, the employer was anticipating that the applicant would arrive for work on Monday, 22 August, and the actions undertaken by the applicant involved him treating the actions of the employer as representing his dismissal from employment.
In respect to the reasons for the delay in filing the unfair dismissal claim, the applicant attempted to rely upon four matters, all of which would be reasonably commonplace and frequently experienced by many individuals. Many Australian workers would be unaware of the 21 day time limit, and would not be well educated, and would look for alternative employment, and would not have access to a computer or Wi-Fi/Internet. In simple terms, there is nothing particularly unusual, uncommon, special, or out of the ordinary about any of the reasons for delay, either individually or in combination.
In these circumstances, to delay filing any claim without satisfactory explanation must represent a failure to act with sufficient timeliness. If the applicant was really serious about contesting his purported dismissal, he could have acted much quicker and there was nothing that prevented him from making a claim within time.
Consequently, when the reasons for the delay are carefully and objectively considered, they do not provide a sound and acceptable reason upon which to establish that the applicant acted with an appropriate level of diligence and genuine regard for undertaking challenge to his alleged dismissal.
Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect
The applicant asserted that he first became aware of his dismissal on 18 or perhaps 19 August 2022, when he was rebuked by Mr Miller. However, any dismissal was not confirmed by Mr Pottle when they met on 20 August, but rather, the employer sought to continue the applicant in employment albeit subject to some disciplinary performance review.
Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal
The applicant did not take action to dispute his dismissal prior to the email that he sent to Mr Pottle on 31 August 2022. However that email does not specifically mention dismissal but instead stated inter alia, “… they have advised me to contact FairWork & I am in the process of that. This is also the reason I haven’t returned to work.” There was subsequently no satisfactory explanation for any subsequent delay in disputing the dismissal in the period after the email sent to the employer on 31 August 2022. Therefore, this factor does not provide any assistance to the applicant.
Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)
There was an absence of evidence as to the details of any prejudice. No identifiable evidence was provided to support any particular submissions that could be made on this point. The time frame of the delay would logically provide some potential for prejudice to arise. On balance, this factor has been treated as being neutral.
Subsection 394 (3) (e) - The Merits of the Application
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 an extension of time was granted.
It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly, in this instance it was relevant to note that the applicant did not dispute that the employer sought to continue the applicant in employment albeit subject to some disciplinary performance review. Consequently, the applicant’s unfair dismissal claim would logically involve the assertion that despite the absence of any clear advice from the employer of a dismissal, the employer’s actions could be treated to have caused the termination of the employment. Thus, the applicant’s unfair dismissal claim was a case of what is referred to as a constructive dismissal.
Constructive dismissal cases are usually not straight forward and ordinarily difficult to prosecute. On any objective and balanced assessment, albeit of only an elementary nature, the applicant’s unfair dismissal claim presents as a matter with very limited prospects for success. Therefore, consideration of this factor would provide little 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
In the absence of any evidence about the treatment of other employees of the employer this factor has been treated as being neutral.
Exceptional Circumstances
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 of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[1]. The consideration therein establishes a caution against adopting an overly stringent interpretation of what 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.
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 CheyneLeanne Nulty v Blue Star Group Pty Ltd[2]and 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
In this instance the exercise of the discretion to extend time has been required in respect to a delay of 6 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.
The reasons for the delay have included the issues of the applicant not being aware of the 21 day time limit, and that the applicant was not well educated and required assistance to complete the application, and that the applicant said that he was looking for other work, and that the applicant said that he did not have access to a computer or Wi-Fi/Internet.
Following careful analysis of these issues, there has not been a satisfactory reason provided for either the initial delay after the applicant had sent an email to the employer on 31 August, or the subsequent delay in the period following the apparent advice that the applicant received from a solicitor on 6 September, and the filing of the unfair dismissal claim on 14 September 2022.
The other factors under consideration either did not assist the applicant's claim for the Commission to exercise the discretion to extend time or were of neutral impact. On any reasonable and objective assessment, the application had only limited potential merits.
Consequently, in this instance the Commission has been required to carefully evaluate and balance all of the relevant factors. In particular, in this instance there was not an acceptable reason for the delay in filing the application.
On balance and having particular regard for the absence of any satisfactory reason for the delay in the entire period after dismissal until the late filing of the application, the Commission has determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was no acceptable reason for the delay. Therefore, there could be no sound and proper justification for the Commission to exercise the discretion to extend time.
An Order [PR749484] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.
COMMISSIONER
[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.
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