Shae Hogan v BG Drilling
[2022] FWC 2131
•10 AUGUST 2022
| [2022] FWC 2131 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shae Hogan
v
BG Drilling
(U2022/6329)
| COMMISSIONER P RYAN | SYDNEY, 10 AUGUST 2022 |
Application for an unfair dismissal remedy – circumstances not exceptional – application dismissed.
This is an edited version of my decision delivered ex tempore and recorded in transcript on 10 August 2022.
An application by Mr Shae Hogan (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) was lodged on 15 June 2022 (Application).
In the Application, the Applicant states that his employment with BG Drilling Pty Ltd (Respondent) was terminated with effect from 10 April 2022.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). By the date set out in the Application, the period of 21 days ended at midnight on 2 May 2022 taking into account the effect of s.36(2) of the Acts Interpretation Act 1901. The Application therefore appeared to be filed 44 days outside the 21 day period.
The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request, and stated in the Form F3 Employer Response that the dismissal took effect from 8 April 2022.
In accordance with directions issued by my Chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The Applicant did not file any materials in response to the directions issued and relies only on his response to question 1.5 in the Application.
For the reasons that follow, I decline to grant an extension of time under s.394(3).
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect. The Applicant contends the dismissal took effect on 10 April 2022, while the Respondent contends the dismissal took effect on 8 April 2022.
The Respondent filed as part of its materials, the letter of termination and the covering email.[1] The covering email was sent to the Applicant at 3:01pm on Friday 8 April 2022 and the letter of termination unambiguously states that the Applicant’s employment “is terminated effective 08.04.2022.”
In the Determinative Conference the Applicant stated that while he received the email and letter of termination on the afternoon of 8 April 2022, sometime over a month later he received an employment separation certificate which stated the date of termination was 10 April 2022.
Taking the above into consideration, I find the date the dismissal took effect was 8 April 2022.
This means the Application was filed 68 days after the date the dismissal took effect, and 47 days outside the 21 day period.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] Exceptional circumstances may 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.[3]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[4]
I now consider these matters in the context of the application.
Reason for the delay
The FW 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 or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[5]
As stated above, the Applicant did not file any materials in response to the directions issued and relies only his response to question 1.5 in the Application, which deals with representative error and is set out as follows:
“It is important to note from the outset that submission of this application extends outside of the 21 day period of recourse under this jurisdiction. The reason for which, is best defined by an exceptional circumstance is a series of issues and delays with prior representatives. To date, the services of a paid agent were engaged to provide advice on my application for Unfair Dismissal. I was entirely reliant on this paid agent to consider, prepare and lodge my application. To date, no such application has been submitted to my knowledge. Therefore, I am seeking consideration from the Commission due to this circumstance being out of my control.”[6]
In the Determinative Conference, the Applicant explained that approximately two days after the dismissal he sought some advice from a friend via text messages. Approximately four weeks later, the Applicant states he contacted an organisation known as Unfair Dismissals Australia and sought some advice.
In relation to both the friend and Unfair Dismissals Australia, the Applicant confirmed that he did not enter into any agreement or arrangement pursuant to which an unfair dismissal application was to be filed on his behalf.
In the period following the Applicant seeking advice from Unfair Dismissals Australia until 15 June 2022, the date the Application was filed, the Applicant confirmed he was prioritising the gathering of evidence to support an underpayment claim against the Respondent.
The relevant principles of representative error were established in Clark v Ringwood Private Hospital[7] (Clark) and were summarised by the Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal & Islander Child Care Agency[8] (Davidson) as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i)Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii)A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii)The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv)Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.”[9]
It is clear from the principles of representative error that an assessment of the conduct of the Applicant will be a central consideration.
The effect of the Applicant’s admission is that any engagement with the friend or Unfair Dismissals Australia was limited to the provision of advice, and that there was no agreement or arrangement with the friend or Unfair Dismissals Australia that an unfair dismissal application would be filed on his behalf.
Accordingly, I do not accept representative error is an acceptable explanation for the delay.
I now deal with two other matters that were raised in the Determinative Conference. The first matter is the Applicant’s statement during the proceedings that this was the first time he had gone through an unfair dismissal process and that it is quite confusing and that he does not have a legal background. To the extent that the Applicant relies on that as a reason for the delay, I do not accept it is a reasonable or acceptable explanation for the delay. The completion and lodgement of an unfair dismissal application is not a complex process. A simple internet search would have pointed the Applicant to the Commission’s website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application. It is a process that many self-represented applicants navigate on a regular basis.
The second matter is Applicant’s prioritisation of the gathering of evidence in relation to other proceedings. I do not accept that is a reasonable or acceptable explanation for the delay.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal, aside from seeking some advice, prior to making the application on 15 June 2022. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I therefore consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3).
Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr S Hogan, Applicant.
Mr B Werchon, for the Respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
10 August.
Printed by authority of the Commonwealth Government Printer
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[1] Hearing Book at pages 33-34.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Hearing Book at page 7.
[7] (1997) 74 IR 413.
[8] (1988) 105 IR 1.
[9] Davidson at p.6.
Printed by authority of the Commonwealth Government Printer
<PR744687>
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