Steven Fella v CSSP Pty Ltd
[2022] FWC 1529
•21 JUNE 2022
| [2022] FWC 1529 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394—Unfair dismissal
Steven Fella
v
CSSP Pty Ltd
(U2022/5562)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 21 JUNE 2022 |
Application for an unfair dismissal remedy – extension of time – application late after litigating in State tribunal – no exceptional circumstances – application dismissed
Steven Fella (Mr Fella or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to an alleged dismissal by CSSP Pty Ltd (CSSP, the respondent or the employer) which took effect on 21 January 2022.
Mr Fella’s application was received by the Commission on 19 May 2022.
The application is ninety-seven days outside the statutory 21-day period for making unfair dismissal claims. Mr Fella seeks an extension of time. CSSP oppose an extension being granted.
There is also a dispute over whether Mr Fella was dismissed within the meaning of the FW Act.
This decision determines whether an extension should be granted.
I issued directions on 24 May 2022.
I heard the extension of time issue by video conference on 14 June 2022.
Mr Fella’s application and materials in support were filed in his own right. He was self-represented at the hearing.
CSSP’s response and materials were filed by its solicitors.
CSSP sought permission to be represented. This was opposed by Mr Fella. For reasons published on 8 June 2022, I refused permission for CSSP to be represented on the extension of time issue.[1] I reserved the right for CSSP to renew its application should the matter proceed further. Over Mr Fella’s objection, I permitted the solicitor for CSSP to attend the extension of time hearing as an observer.
Mr Fella gave evidence.[2] The Managing Director of CSSP, Mr Marc Hemmett, represented the employer and gave evidence (from New Zealand).
The facts, drawn from both oral and documentary evidence, are largely not in dispute. Both witnesses were conscientious, and whilst holding firm views on matters in disagreement, gave evidence that can be relied upon. Mr Fella was candid in answers and did not embellish his evidence even where such candour did not particularly suit his case. That is to his credit.
Facts
I make the following findings.
CSSP provides construction management software in Australia and New Zealand.
Mr Fella was employed by CSSP in March 2018 as a full time Payroll Manager and Office and Customer Service team member.
On 23 July 2021 Mr Fella’s duties changed. He was temporarily appointed (for six months) in a consultancy role (four days per week) with the remaining day reverting to his customer service work.
Shortly thereafter, Mr Fella sought written confirmation of the employment changes. This was not provided until the following month. Mr Fella sought a higher duties payment including back pay from 23 July 2021.
A dispute arose between Mr Fella and CSSP over the back pay.
On 19 October 2021 Mr Fella made a money claim for back pay in the South Australian Employment Tribunal (SAET).
Conferences were held by SAET on 17 November 2021 and 4 December 2021 but the matter did not resolve.
On 13 December 2021 (and again on 19 December 2021 and in January 2022) Mr Fella revised his SAET money claim to include claims for additional sums allegedly due.
Mr Fella exchanged regular email correspondence with CSSP (and vice versa) over his money claim(s) from the time he first lodged the SAET proceedings.[3] Disagreements arose even concerning the email exchanges, with Mr Fella considering it inappropriate that Mr Hemmett copied-in certain managers and officers making his working relationships difficult. Mr Fella considered CSSP’s response to his money claim aggressive and bullying.
The dispute escalated when six emails were exchanged between CSSP and Mr Fella (and vice versa) on 17 December 2021:[4]
· at 9.13am Mr Hemmett sent Mr Fella an email attaching CSSP’s response to his SAET claim;
· at 12.19pm Mr Fella sent Mr Hemmet an email stating that he was “now claiming more due to your poor professionalism, inability to negotiate and your comment “we were going to do the backpay in good faith but after discussion we are [with]drawing our offer” (when you had no intention all along)…yes this email might be somewhat aggressive in some portions but this is far beyond a joke so I am making my frustrations felt”;
· at 1.13pm Mr Hemmett sent Mr Fella an email stating “this matter is to go before the SAET Commissioner and that is the appropriate forum for the discussion and not via email prior”;
· at 1.45pm Mr Fella sent Mr Hemmett an email stating that “To court we go. This is also my formal resignation as at 22 January 2022”;
· one minute later, at 1.46pm, Mr Hemmett sent Mr Fella an email stating “resignation accepted”; and
· at 5.11pm Mr Fella sent to SAET copied to Mr Hemmett an email stating, amongst other matters, that “Being forced to resign and forced to get lawyers involved because the respondent is unlawful and wants to do what is in their best interest regardless of the anguish they cause to its employees is inexcusable and I will be taking this as far as I can”.
After taking three weeks of annual leave over Christmas/New Year, Mr Fella’s employment with CSSP ceased on 21 January 2022. This date coincided with the final date of Mr Fella’s temporary six-month consultancy work.
After his employment with CSSP ended, Mr Fella secured temporary (contract) work with other parties.
A conference on the money claim was held by SAET on 6 March 2022. That day, by email, Mr Fella advised CSSP that he was preparing an action against CSSP for forcing his resignation.[5]
On 20 March 2022 Mr Fella’s grandfather passed away, requiring Mr Fella to travel interstate for 24 hours to attend his funeral service.
On 1 April 2022 SAET set down the money claim for hearing on 27 June 2022.
Further disputes arose between Mr Fella and CSSP concerning the SAET litigation following a subpoena issued by Mr Fella and disagreement over SAET powers to order costs.[6]
In May 2022 Mr Fella commenced research on whether and how he could make an unfair dismissal claim for a forced resignation.
On 17 May 2022 Mr Fella sourced from the SAET website a form ‘Application – Unfair Dismissal’. He populated the form and lodged it with SAET that day (17 May).
Mr Fella was immediately advised by SAET that it could not accept his claim as he was employed by a private company, and would need to file in the Commission.
On 18 May 2022 Mr Fella accessed a F2 ‘Unfair Dismissal Application’ form on the Commission website, populated the form and lodged it that day.
Submissions
In his application, Mr Fella acknowledges it is out of time and offers the following explanation:
“The submission was delayed due to the current outstanding money claim application case with SAET (case number ET-21-05052) I have with the respondent which has gone on longer than 6 months. I wanted that case to settle but the ETA on that could drag out further than expected to do [sic] the unwillingness of the respondent in that case.”
Mr Fella, in his evidence and submissions, advanced four reasons for the delay:
· the SAET money claim proceeding, becoming increasingly contested and not settling;
· the impracticality of litigating two claims against the respondent at once;
· the death of his grandfather in March 2022 and the impact that had on him; and
· that he initially filed his unfair dismissal claim in the SAET rather than the Commission.
Mr Fella submits that his claim proceeding does not prejudice CSSP because he put CSSP on notice on 17 December 2021 and again on 6 March 2022 that he was intending to take his (alleged) forced resignation further.
CSSP submit there are no exceptional circumstances justifying an extension of time. It contends:
· the decision to pursue a money claim in the SAET was Mr Fella’s and Mr Fella’s alone, and was commenced months before he left CSSP’s employment;
· a statutory unfair dismissal claim is separate litigation and involves separate issues. There is no sense in which the outcome of one impacts the outcome of the other;
· there was no impediment, legal or otherwise, to Mr Fella filing an unfair dismissal claim within the 21-day requirement;
· Mr Fella allowed three months to pass after his employment ended before taking any action to research his unfair dismissal rights. In so doing he was motivated by his dissatisfaction that CSSP had not settled his money claim out of court and was contesting the money claim;
· there were no special or unique personal circumstances;
· the merits of the application are weak because Mr Fella resigned; and
· CSSP will be put to cost and expense of defending a late application that it considers meritless.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[7]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant[8]. A decision whether to extend time under s 394(3) involves the exercise of a discretion[9].
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[10]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[11]
Status of the application
The application is ninety-seven days out of time. With the alleged dismissal having taken effect on 21 January 2022, the application was required to have been filed by 11 February 2022. The period of delay is from 12 February 2022 to 19 May 2022 (inclusive). Mr Fella’s application can only proceed if an extension is granted.
I now consider each of the factors set out in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[12] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[13]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[14]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[15]
I now deal with the reasons advanced by Mr Fella for the delay.
The SAET money claim
Whilst there may be circumstances where it is in the interest of justice to allow the time for filing litigation to be extended on account of other litigation between the same parties, there is no such general rule. Indeed, whilst the existence of other litigation between the parties is relevant to considering whether an acceptable reason for delay exists, the statutory scheme would be undermined if any such general rule was to apply.
It is clearly foreseeable that, from time to time, a cross over in time may occur between an employee litigating against an employer for sums due and that employee being dismissed. That notwithstanding, the legislature did not carve out such circumstances from the 21-day rule.
In this matter there is no relevant connection between Mr Fella’s money claim in the SAET and the statutory unfair dismissal claim that weighs in favour of his delay on that account being an acceptable reason.
Apart from the parties and the contract of employment being common, the litigation in the SAET and in the Commission involve separate issues of fact and law. There is no relevant sense in which the outcome of the SAET matter would bear on the unfair dismissal proceedings. Whether Mr Fella is owed sums for work done under contract or an industrial instrument is a separate question from whether he was forced to resign or whether the circumstances in which his employment ended were unfair.
I take into account that Mr Fella asserts, in the unfair dismissal jurisdiction, that he was forced to resign (and thus dismissed) because of CSSP’s conduct that related directly or indirectly to its handling of his SAET claim. That is not, however, a sufficient link (or a link at all) to the matters in issue in the two proceedings. The money claim is not an inquiry into the employer’s litigation conduct in managing the money claim; it is an inquiry into whether Mr Fella was owed sums due. There are no relevant common matters in issue that could have reasonably warranted Mr Fella delaying litigating the unfair dismissal claim.
Nor is there any relevant prejudice that Mr Fella would incur if he were giving evidence in one matter whilst the other was proceeding. These are two civil proceedings brought by the same employee against the same employer. This is not a case where, for example, prejudice arises that compromises the interests of justice, such as where an unfair dismissal matter raises issues that are the subject of criminal investigation or prosecution and where a dismissed employee’s rights at law could be prejudiced by giving evidence in parallel proceedings.
Further, the SAET proceedings were commenced by Mr Fella two months before he gave notice of resignation. His cause of action in the unfair dismissal jurisdiction did not exist at the time he took action in the SAET.
The fact that a money claim was being litigated between the parties is not an acceptable reason for the delay.
Impracticality of litigating two claims
Mr Fella took action in his own right in the SAET and in the Commission and is representing himself in both jurisdictions. He is not a lawyer.
I accept Mr Fella’s evidence that he is unfamiliar with litigation in the SAET and in the Commission, and would find it (and is now finding it) burdensome to litigate two matters in parallel.
There is however, nothing unusual about such a circumstance. Given that both actions were initiated by Mr Fella, it was a matter for Mr Fella to determine the level of litigation burden he wished to bear. With each decision comes consequence; the consequence of waiting for earlier litigation to conclude before bearing the burden of additional litigation carried the risk that time may have elapsed to commence the second litigation. It is not for the Commission to extend time simply because doing so eases the litigation burden on a dismissed employee.
Whilst Mr Fella considered it impractical to litigate two matters at once, the evidence suggests that it was more than a concern about practicality that gave rise to the delay. Mr Fella in his evidence made it clear that there were additional triggers by mid May 2022 - he was frustrated that CSSP had not settled his money claim, that the business was giving every indication that it was allowing the matter to proceed to hearing, disputes over his subpoena and costs had arisen, and general litigation was going “back and forth”.[16] As noted, the reason advanced by Mr Fella when filing his application was that the SAET matter had “gone on longer than 6 months. I wanted that case to settle but the ETA on that could drag out further than expected”.
I accept that Mr Fella genuinely felt wronged by the circumstances surrounding his resignation and that this was his view prior to his notice taking effect, at the time his employment ceased, and in the weeks and months following. I do not find that Mr Fella initiated the unfair dismissal claim with ill-intent or as a strategy to force a settlement of his SAET matter, but I do find that, in part, he delayed filing his unfair dismissal claim because he wanted and had hoped for a settlement.
Neither the perceived impracticality of litigating parallel claims nor the hope for a settlement of the money claim are acceptable reasons for the delay.
Personal circumstances
Mr Fella submits that the delay in filing in part arose because of the impact on him following the death on 20 March 2022 of his grandfather, with whom he was close.
Over a 24-hour period Mr Fella travelled interstate for the funeral and I readily accept that Mr Fella felt grieved and troubled even upon returning to Adelaide for work in the days following.
However, there is no evidence before me that Mr Fella’s personal circumstances were unique or that the impacts were such that dismissal litigation could not be filed, or could only be filed two months later. Indeed, Mr Fella was already five weeks out of time by the time these events occurred.
Filing in the wrong jurisdiction
Mr Fella did file an unfair dismissal claim in the wrong jurisdiction (SAET) and this occurred because of his lack of technical knowledge about the legal system. He was unaware that the SAET jurisdiction could not entertain unfair dismissal claims against private sector employers in South Australia. Mr Fella filed promptly the following day in the correct jurisdiction.
This is a reasonable explanation for one day, but only one day, of the delay period. It does not explain the delay for the preceding ninety-six days.
At its highest, Mr Fella’s evidence was that he only actively researched his unfair dismissal rights in the week or fortnight before filing in the SAET and then the Commission. For the preceding three months (February, March and April 2022) Mr Fella’s evidence was that he had it “in the back of his mind” to do so but had not clearly resolved to do so. As I have found, Mr Fella was hoping that the money claim would settle, but instead it had “dragged on”.
Considered overall, the reasons for delay, neither individually nor collectively, weigh in favour of a conclusion of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Mr Fella was aware of his employment ending on 21 January 2022, as this was the notice period he gave to align with his contract work ending.
Mr Fella was neither confused about the date his employment ended nor the reason why he resigned and had given notice.
In the circumstances, this is a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
I have found that Mr Fella genuinely felt wronged by the circumstances surrounding his resignation and that this was his view prior to his notice taking effect, at the time his employment ceased, and in the weeks and months following.
Mr Fella says that he put CSSP on notice twice (17 December 2021 and 6 March 2022) that he was intending to litigate the circumstances of his resignation.
On 17 December 2021, Mr Fella informed both SAET and Mr Hemmett that he believed that he had been “forced to resign” earlier that day. These are the words he used in his email sent at 5.11pm. However, his reference in that same email to “I will be taking this as far as I can” is somewhat more ambiguous as it could equally be interpreted as a reference to taking the money claim litigation as far as he could. Given that Mr Fella was, at that time, expanding the terms of his money claim, it was not unreasonable that Mr Hemmett took it that way.
In any event, the relevant finding I make is that Mr Fella put CSSP on notice the very day of his resignation that he was dissatisfied with the circumstances of his resignation and had felt forced to do so.
I make this finding also having regard to Mr Fella’s email to Mr Hemmett of 6 March 2022 in which he stated:[17]
“I have begun preparing my case for CSSP forcing me to resign, which is something I have already made you aware of”.
Although I have found that Mr Fella had not in fact been actively researching his rights at that time but rather had them at back of mind, and in that sense his assertion was an overstatement, it nonetheless constituted further evidence of intent.
Mitigating somewhat the force of this email is the fact that by 6 March 2022 Mr Fella was already twenty-three days out of time. I do not however consider it in isolation from the earlier email of 17 December 2021.
For these reasons, whilst Mr Fella had not taken formal action to dispute his dismissal before filing his claim (other than on the day preceding), it ought to have come as no surprise to CSSP when Mr Fella did so.
This factor weighs somewhat in favour of granting an extension of time.
Prejudice to the employer (s 394(3)(d))
CSSP point to the fact that if Mr Fella’s application is allowed to proceed, it will have to defend late proceedings which involve cost and expense.
The nature of this prejudice to the employer is not unique.
However, the absence of prejudice would not itself be a reason to grant an extension.[18]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
As noted, the grounds on which Mr Fella challenges his dismissal relate to alleged litigation conduct and workplace bullying consequent on him exercising a workplace right to file a money claim in the SAET.
In advance of dealing with the merits, the Commission would need to determine whether Mr Fella’s resignation was a forced resignation such that he was dismissed within the meaning of the FW Act. Mr Fella claims that his resignation was forced because of:[19]
“deliberate actions taken by employees in your organisation to make me feel worthless and uncomfortable to the point where it was emotionally unhealthy for me to continue working as an employee any longer”.
That is a live issue in dispute.
Both the jurisdictional issue and the merits raise substantial issues dependant on findings of fact and the application of facts to the law. It is apparent that factual propositions are likely to be heavily contested and that issues of credit may be relevant.
Not having heard evidence on these issues it is not safe to express even a provisional view on either the jurisdictional question or the merits.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
CSSP submit that it would be unfair to other employees who have filed late claims and not been allowed to proceed, or to those that have filed claims in time despite having parallel litigation afoot, if Mr Fella’s claim was allowed to proceed.
I do not agree.
Whether it is appropriate to grant an extension of time in other matters is a decision made in the context of each matter, according to relevant legal principles in s 394 of the FW Act. The outcome of other matters, past or prospective and where parallel litigation exists or not, has no bearing on the outcome of Mr Fella’s matter, nor vice versa. I am not determining Mr Fella’s matter by reference to any general principle. It is being determined by reference to its particular facts.
Nor is there evidence before me that Mr Fella’s application is some sort of test case or matter where others are awaiting the outcome before litigating.
This is a neutral factor.
Conclusion
In the context of a 21-day statutory time limit, the period of delay (ninety-seven days) is significant.
One day of the ninety-seven is a reasonable explanation for the delay, but the explanation for the delay across the other ninety-six neither individually nor collectively weigh in favour of a conclusion of exceptional circumstances.
That Mr Fella had put CSSP on notice that he was dissatisfied with the circumstances of his resignation and, from 6 March 2022, that he was preparing litigation on that issue, weighs somewhat in favour of an extension of time.
All other factors are neutral or not relevant.
Considered overall, I am not satisfied that exceptional circumstances exist. Mr Fella delayed making an unfair dismissal claim for more than three months after his employment ceased. Only when it became apparent to him that his money claim in the SAET was not settling and becoming more litigious did he resolve to litigate his unfair dismissal grievance. He then took approximately two weeks to research and prepare what was a very late claim. Filing in the wrong jurisdiction only explains one day of the delay.
I take into account that Mr Fella would sustain prejudice if an extension were not granted as his genuinely held grievance about the circumstances of his resignation would not be independently adjudicated. That is however a consequence of Mr Fella delaying. It is a readily foreseeable and not unusual consequence of delay.
There being no exceptional circumstances, the time for lodgement of application U2022/5562 cannot be extended.
Being out of time, the application must be dismissed.
An order[20] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
S Fella, on his own behalf
M Hemmett, of and on behalf of CSSP Pty Ltd
Hearing details:
2022
Adelaide (by video)
14 June
[1] Email to parties from ‘Chambers - Anderson DP’ 8 June 2022 9.59am
[2] A1 Statement of Steven Fella 24 May 2022
[3] Emails at A4
[4] A3 (email times adjusted for time differentials)
[5] A5
[6] Emails at A6
[7] Smith v Canning Division of General Practice[2009] AIRC 959
[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[9] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[10] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[11] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[12] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]
[14] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[15] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[16] Transcript 1hr 43m to 1hr 46m
[17] A5
[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[19] A5 paragraph 1
[20] PR742717
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