Terry Stocks v Wayston Pty Ltd

[2021] FWC 5942

[2021] FWC 5942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009 (Cth)
s.365 - Application to deal with contraventions involving dismissal

Terry Stocks
v
Wayston Pty Ltd
(C2021/4356)

DEPUTY PRESIDENT LAKE BRISBANE, 16 SEPTEMBER 2021

Application for extension of time to file unfair dismissal application – application refused.

[1] Mr Terry Stocks (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Wayston Pty Ltd (theRespondent).

[2] The Applicant began his employment in early August 2019. He was engaged on a casual basis and his last shift with the Respondent was on or around 25 October 2019, however there was some correspondence that suggested his employment may have terminated on 29 October 2019 instead. The parties proceeded based on the latter date. I have done the same. Before I can consider the merits of the application, I must determine whether the application was made within time and, if not, whether an extension should be granted.

Was the application lodged within time?

[3] Section 366(1) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

[4] It is uncontentious that the Commission received the Applicant’s application on 26 July 2021, which was 636 days after his dismissal and some 615 days outside of the 21 days required under s.366(1) of the Act. For the Applicant’s application to proceed, it is necessary for him to obtain an extension of time under s.366(2) of the Act. The Respondent opposes the granting of such an extension.

Consideration of whether a further period should be granted

[5] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] The test of “exceptional circumstances” establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australiastated that:

“[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.”  2

[7] Given that the Applicant was unrepresented at the hearing, I specifically asked him to address each of the factors set out in s.366(2) of the Act.

[8] The Applicant’s submissions may be summarised as follows:

(a) the Applicant’s application had been delayed because of representative error;

(b) the Applicant had attempted to contact the Respondent by phone on multiple occasions to follow up on a meeting that occurred on 29 October 2019, but admitted that he had not specifically taken any other action to dispute the dismissal;

(c) granting the extension of time would not prejudice the Respondent;

(d) the application is with merit; and

(e) there were no other people in a like position.

[9] The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent submitted that:

(a) the Applicant had not adequately explained the reason for the delay;

(b) the Applicant’s material attaches a variety of letters from legal practitioners in or around November 2019, outlining potential causes of actions against the Respondent though no actual action was taken at that time;

(c) it has been almost two years since the Applicant’s employment was terminated and there is significant prejudice caused by the delay in the proceedings;

(d) the Respondent has already defended an Application for underpayment of wages against the Applicant and the Respondent submits that the Applicant’s litigation against it is becoming vexatious;

(e) the application is without merit;

(f) accordingly, the matter should be dismissed.

Consideration

Reason for the delay (s.366(2)(a))

[10] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“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 reliant matters and the assignment of appropriate weight to each.” 5

[11] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 6

[12] During the hearing on 31 August 2021, the Applicant submitted in evidence-in-chief that he had been delayed in making the application due to representative error. The Applicant said this was due to the advice he had received from two legal representatives. Firstly, on 10 November 2019, the Applicant sought advice from Mr Browne, a lawyer who suggested that he claim payment of a two-week notice period from the Respondent. On 10 November 2019, he lodged a notice of demand for that amount but this claim was unsuccessful in the Magistrate’s Court as the Applicant did not attend Court on the scheduled day and the application was dismissed. Secondly, in or around October 2020, the Applicant sought advice from Mr Gunadasa from Hall Payne Lawyers, who advised that the Applicant had taken the wrong action and suggested that he pursue the matter through the Federal Court of Australia. The Applicant said Mr Gunadasa had the matter from around October 2020 to July 2021 but he does not think Mr Gunadasa ever filed an application with the Federal Court. He then made enquires himself which is how he recently discovered that there was a 21 day time limit within which to lodge an application with the Commission. He claims that the two legal representatives had not made him aware of the requirements for a general protections application and he filed as soon as he could after he became aware.

[13] The Respondent asserted that the Applicant was employed as a casual to perform property assessment surveys. He was told which properties to inspect and when they would be available. He would then perform the surveys and received a set fee per inspection. The Respondent asserted that the Applicant was only provided with work when it was available. The Respondent contended that after the program had been running for a couple of months, it was decided that it would go into a period of hiatus due to the difficulties of organising the bookings with tenants. The Respondent told the Applicant that they would contact him when they recommenced the survey work. The Respondent says there has been no termination, rather there has been a lack of work due to the suspension of the program until the access issues could be addressed. Consequently, they have not scheduled any shifts from the end of October 2019.

[14] The Respondent submitted that the Applicant had not been dismissed. Rather, the Respondent asserted that the Applicant had ceased to be provided with shifts in his casual employment as the program in which the Applicant was working had been suspended. Further, the Respondent suggested that the Applicant had ended the employment relationship in or around November 2019 when a letter of demand was sent to the Respondent. In cross-examination, the Applicant agreed on several occasions that he had not been terminated by the Respondent. Further, the Applicant agreed that he had signed a casual employment contract, shifts were allocated to him subject to the availability of the Respondent’s clients and following the meeting of 29 October 2019, he had not been assigned further tasks in the course of his employment with the Respondent. The Respondent states there has been no termination, but if there was a termination on 29 October 2021, the Applicant is out of time by more than 600 days.

[15] Furthermore, the Applicant’s application was submitted 615 number of days out of time. The Applicant submitted that this delay was due to representative error. The Applicant’s suggestion that he had not been informed of the 21-day time frame to lodge a general protections application after speaking to two legal representatives, including one of which who was noted as being a workplace relations specialist, is unconvincing. Based on the evidence, the Applicant engaged legal representatives who attempted to recover the loss of a notice period and pursue an underpayment dispute. The evidence submitted indicated that the Applicant had not been seeking legal representation with the attempt to address a general protections dismissal dispute. In the present circumstances, I am not satisfied that there is sufficient evidence to support the assertion that the application was lodged 615 days out of time due to representative error. Any perusal of the Commission’s website about general protections highlights the 21-day time frame. In the absence of representative error, the usual stance must be adopted. That is, that ignorance of the statutory timeframe is not a sufficient reason to justify an extension of time. 7

[16] Accordingly, I am not satisfied that any of the reasons put forward by the Applicant qualify as “exceptional”.

Action taken to dispute the dismissal (s.366(2)(b))

[17] When told by the Respondent that the program was to be put on hold, the Applicant did not dispute that decision. He did seek some legal advice and initially took some action regarding the payment of the notice period but did not at that time make a general protections claim or dispute his termination. He did not dispute his dismissal with the Respondent until 26 July 2021 when he filed this application. This factor does not weigh in favour of an extension of time.

Prejudice to the employer (s.366(2)(c))

[18] The Applicant submitted that allowing the extension of time would not prejudice the employer. The Respondent has submitted that to allow the application to proceed some two years after the Applicant was terminated, would cause significant prejudice to the Respondent (though no specific details of that prejudice are listed). Nevertheless, I consider this factor to be in favour of upholding the jurisdictional objection.

Merits of the Application (s.366(2)(d))

[19] The Applicant claims that he had been dismissed due to reporting a health and safety concern, regarding narcotic usage from a contractor working for the respondent company. According to the Applicant, this concern was reported in or around Monday 23 September 2019 and the Respondent ceased to provide work to the Applicant in October 2019. The Respondent states that the Applicant’s claim was investigated but was unrelated to the house inspection work. They state that the inspection work has still not been resumed.

[20] In Kornicki v Telstra-Network Technology Group, the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”  8

[21] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing so the Commission “should not embark on a detailed consideration of the substantive case.” 9

[22] Without having all the evidence before me, I consider this factor to be neutral with respect to the jurisdictional objection.

Fairness as between the Applicant and other persons in a like position (s.366(2)(e))

[23] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10

[24] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[25] Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[26] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR734056>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

 2   [2019] FWC 25.

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

 5   [2018] FWCFB 901 at [39].

 6   See 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.

 7   Rose v BMD Constructions Pty Ltd[2011] FWA 673.

 8   PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 9   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].