Steven Dilger v Tacaso Pty Ltd T/A Bears Tyrepower

[2020] FWC 2784

[2020] FWC 2784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Dilger
v
Tacaso Pty Ltd T/A Bears Tyrepower
(U2020/5899)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 28 MAY 2020

Unfair dismissal application – refusal of application to extend time – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Steven Dilger a further period for his unfair dismissal application (Application) to be made against Tacaso Pty Ltd T/A Bears Tyrepower (Tyrepower).

Hearing

[3] On 27 May 2020, a hearing, by telephone, was conducted in relation to Mr Dilger’s application for an extension of time. Mr Dilger gave evidence in support of his application for an extension of time.

[4] Tyrepower cross examined Mr Dilger, but did not call any witnesses to give evidence on the extension of time issue.

Legislative scheme

[5] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

Consideration

Paragraph 394(3)(a) - reason for the delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period. 7 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,8the Full Bench explained (at [31]) the correct approach by reference to the following example:

“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.”

[10] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s 394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 9

“[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[11] As to acceptable explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 10

Relevant chronology of events and reasons for delay

[12] Mr Dilger was employed by Tyrepower as full time mechanic. Mr Dilger was employed by Tyrepower on 14 May 2018 and dismissed on 6 April 2020.

[13] The 21 day time period for Mr Dilger to make his Application expired on 27 April 2020. 11 Given that Mr Dilger filed his Application on 29 April 2020, the Application was filed 2 days late.

[14] In accordance with the principles summarised in paragraphs [9]-[10] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 27 to 29 April 2020. However, the circumstances from the time of the dismissal on 6 April 2020 must be considered when assessing whether there is an acceptable explanation for the delay, or any part of the delay, beyond the 21 day period.

[15] In his Application Mr Dilger described the reason for his delay as follows:

“Have been notified by another employee that was made redundant by the same business at same time and was not aware of a time limit.”

[16] In response to a direction that Mr Dilger file and serve a written statement in support of his application for an extension of time, Mr Dilger sent an email dated 17 May 2020 to the Commission in the following terms:

“At the time of termination that I had no prior knowledge of, Mr Barratt spoke only of a range of government support mechanisms and of a COVID self help guide, DID NOT inform me that I could lodge a unfair dismissal or of a time frame.

On the 9th of April Mr Barratt gave my personal details out to a customer which upset me deeply.

I found out that other employees had been put on job keeper and I was not given that option. I had seen an article on A Current Affair on jobkeeper payment of all employees in, not to pick and choose.

I then started to make an application for unfair dismissal.

During this time I had started a new job as a casual, my wife has had an ongoing health issue that we have been going to Doctors for, having ultrasounds going to Newcastle to have procedures performed. My wife needed lots of personal care during this time, help dress her, shower as well as doing the house work when I finished payed employment.

Because of COVID And being in lockdown, kids at home doing home schooling and the internet slowing or not working at times it has been a trying time.

On top of that my elderly mother who has emphysema has been house bound I needed to check on her regularly a round trip of 50km. Getting groceries both for myself and my mother has been stressful.

This is about having a fair go, being given the same chance as everyone else.

I have also included a copy of termination paper

Thank you for your time

Steven”

[17] A copy of the termination letter given to Mr Dilger was attached to his email to the Commission dated 17 May 2020. That letter stated, amongst other things:

“This letter is to advise you about the outcome of a recent review into my business’s current situation. As a result of this review, I have to make some changes which are not only going to affect you but also my business.

As you may be aware, I have recently faced some significant challenges to relation to my business that are beyond my control.

Unfortunately, the consequence of this is that my business no longer requires somebody to perform the job of full time mechanic. Regrettably, this means that I have to terminate your employment.

I would like to make it clear that you have been a very valuable employee and this termination is not a reflection of my satisfaction with your job performance.

You are entitled to redundancy pay in the amount of $8,400.50 gross…

You are entitled to 3 weeks of notice of termination of your employment. However, in lieu of receiving this notice, you will be paid 3 weeks pay. This means that your employment is terminated with immediate effect …

I would like to take this opportunity to thank you for your contribution during your time with me. You have been a valuable member of my team and I wish you all the best with your future endeavours…”

[18] Mr Dilger gave the following relevant oral evidence during the hearing, by telephone, on 27 May 2020:

•  Mr Dilger has difficulty from time to time with internet and telephone reception where he lives. Mr Dilger believes that these difficulties were worse in April 2020 (as a result of more people being at home) than is usually the case.

•  On about 27 April 2020, Mr Dilger saw an episode of A Current Affair in relation to JobKeeper payments, particularly the “all in” principle whereby an employer cannot pick and choose between employees who will receive the JobKeeper payments. This caused Mr Dilger to look at the website of the Commission in relation to the termination of his employment with Tyrepower. It was at this time that Mr Dilger first became aware of the existence of a 21 day time limit for filing an unfair dismissal application. Mr Dilger worked on his Application from about 27 to 29 April 2020 and filed it in the Commission on 29 April 2020.

•  Mr Dilger commenced casual work in his new employment on 15 April 2020. He worked 76 hours in his first fortnight (15 to 29 April 2020) and has worked between about 60 and 76 hours in each fortnight thereafter.

•  Mr Dilger’s new job is located in Tuncurry, which is also where he worked for Tyrepower. Tuncurry is about 25 km away from Mr Dilger’s home in Minimbah. Tuncurry is just across the bridge from Forster, which is where Mr Dilger’s mother lives.

•  Mr Dilger visited his mother twice a week in the period from 6 to 29 April 2020. When he was working during that period he visited his mother after work.

•  Mr Dilger attended a doctor’s appointment with his wife about two or three times in the period from 6 to 29 April 2020. Mr Dilger did not go to Newcastle with his wife for the purpose of having a procedure performed in the period from 6 to 29 April 2020.

[19] I have sympathy for the range of matters Mr Dilger was dealing with in the period from 6 to 29 April 2020, but am of the view that Mr Dilger did not have an acceptable explanation for any part of the delay in filing the Application. Mr Dilger was able to complete and lodge the Application within two days of looking at the Commission’s website and finding out that there was a 21 day time limit in place. Accordingly, this factor (s 394(3)(a)) weighs against a finding of exceptional circumstances and granting an extension of time.

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

[20] On 6 April 2020, Mr Dilger first became aware of his dismissal. That was the day on which the dismissal took effect. Accordingly, this factor (s 394(3)(b)) does not support the case for granting an extension of time.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[21] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 12

[22] Mr Dilger did not take any steps to dispute his dismissal, other than filing the Application. Accordingly, this factor (s 394(3)(c)) weighs against a finding that there are exceptional circumstances and granting an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[23] Prejudice to the employer will weigh against granting an extension of time. 13 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.14

[24] A long delay gives rise “to a general presumption of prejudice”. 15

[25] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 16 Tyrepower did not adduce any evidence on the issue of prejudice.

[26] Noting that the delay was 2 days, I am satisfied that there would be no greater prejudice to Tyrepower caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to Tyrepower is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[27] In his Application Mr Dilger contends that his dismissal was unfair for the following reasons:

“Another employee and myself were made redundant while all other employees were stood down and have since resumed employment on jobkeeper payments.”

[28] Tyrepower has not filed a response to the Application, nor did it adduce any evidence in relation to the reasons for or fairness of the decision to terminate Mr Dilger’s employment.

[29] In view of the lack of material before the Commission in relation to issues such as the nature and extent of any operational changes in Tyrepower’s requirements, the connection, if any, between such changes and the decision to dismiss Mr Dilger, and steps, if any, taken by Tyrepower to comply with its consultation obligations concerning Mr Dilger’s redundancy, I consider this criterion (s 394(3)(e)) to be neutral in relation to Mr Dilger’s application for an extension of time.

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

[30] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 17 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[31] Mr Dilger points to the differential treatment he received compared to most other employees of Tyrepower who were kept on and paid JobKeeper payments. This is relevant to an assessment of the fairness of Mr Dilger’s dismissal, but it is not, in my view, relevant to s 394(3)(f) of the Act, which is concerned with comparative fairness as between an applicant such as Mr Dilger and other persons who have been dismissed, not other employees who remain employed by Tyrepower.

[32] In all the circumstances, I consider this factor (s 394(3)(f)) to be a neutral consideration in determining whether to grant an extension of time.

Conclusion

[33] Having taken into account each of the factors referred to in s 394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting consideration of whether I should exercise my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by Mr Dilger. Although I have sympathy for the range of matters Mr Dilger had to deal with in the period after his dismissal on 6 April 2020, the circumstances were not, in my evaluative assessment, out of the ordinary course, unusual, special, or uncommon.

[34] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Dilger, appeared on his own behalf.

Ms Milan, Employment Relations Advisor, Motor Traders’ Association of NSW, on behalf of the respondent.

Hearing details:

2020.

Newcastle:

27 May.

Printed by authority of the Commonwealth Government Printer

<PR719707>

 1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) of the Act

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605

 7   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]-[31]

 8   [2016] FWCFB 349

 9   [2018] FWCFB 3288 at [35]-[45]

 10   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 11   That is, 21 days from 6 April 2020 (not including 6 April 2020) is 27 April 2020.

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

 13   Ibid

 14   Ibid

 15   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 16   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 17   [2016] FWCFB 6963