Toby Artery v G Case & H Case T/A Gavin Case Marine Services

[2021] FWC 4367

[2021] FWC 4367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Toby Artery
v
G Case & H Case T/A Gavin Case Marine Services
(U2021/4457)

DEPUTY PRESIDENT EASTON SYDNEY, 22 JULY 2021

Application for an unfair dismissal remedy – unfair dismissal application filed out of time – misapprehension of the effective date of dismissal – mental health – circumstances not exceptional – application dismissed

[1] Mr Artery was dismissed from his employment with G Case & H Case t/as Gavin Case Marine Services (“the Respondent”) on 30 April 2021. Section 394(1) of the Fair Work Act 2009 (“the Act”) requires Mr Artery to make his application for an unfair dismissal remedy within 21 days after his dismissal took effect, being midnight on 21 May 2021. Mr Artery did not make his application until 24 May 2021 and requires an extension of time.

[2] Mr Artery relies on a number of factors to support his application: he was paid two weeks’ pay in lieu of notice and he thought that the 21 day time limit did not start until two weeks after the dismissal, he could not afford the application fee and took time to borrow money from his mother to file his application, he was stressed by the circumstances of losing his job and the need to meet family commitments, and also that he suffers from mental illness.

[3] I have considered each of these matters individually and collectively and I am not satisfied that there were exceptional circumstances in Mr Artery’s case that could allow me to make an order allowing him a further period to commence his application.

[4] On the limited evidence before me it is not controversial that the Respondent spoke to Mr Artery on 23 April 2021 to discuss concerns about Mr Artery’s conduct and behaviour in the workplace. On 30 April 2021 the Respondent spoke again with Mr Artery and dismissed him from his employment on that day. Mr Artery did not attend work between 23 April and 30 April because he was an apprentice and was attending TAFE. The Respondent alleges that in the same period Mr Artery contacted another employee and acted in an unsatisfactory manner towards that employee. Mr Artery does not deny contacting another employee out of hours but denies that the acted inappropriately when contacting that employee.

[5] In accordance with pre-trial directions Mr Artery and the Respondent both filed evidence and submissions in support of their respective positions. At the Telephone Hearing on 15 July 2021 Mr Artery represented himself and Mr Traill of Employsure Law represented the Respondent with permission pursuant to s.596 of the Act. 1 Only Mr Gavin Case was required for cross-examination at the hearing.

Section 394 – Exceptional Circumstances

[6] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows (per s.394(3)).

[7] The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances” (per s.394(3)). The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome. 2 The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

“[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.

…

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[8] Section 394(3) specifically requires the Commission to take into account the following matters when considering whether there are exceptional circumstances, viz:

“(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.”

[9] These factors, considered separately or in combination, might constitute exceptional circumstances, even if no single factor is exceptional. 3

Reason for the delay

[10] I am required to take into account “the reason for the delay”. 4 The test invariably applied is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether there are exceptional circumstances, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[11] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay.⁵ That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[12] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good, credible explanations for delay do not receive an extension of time because they cannot firstly establish that exceptional circumstances exist.

[13] The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after time limit has expired. 6

[14] The primary reasons relied upon by Mr Artery for the delay were, firstly, that he thought that he had more time because he thought that the time limit did not start until two weeks after he was told he was dismissed (because he was paid two weeks in lieu of notice). Secondly Mr Artery says he didn’t have enough money to file his application. In this regard he said:

“I firmly believe that I have had exceptional circumstances happen to me and it is shown that I had no chance of filling out an application for unfair dismissal while I was trying to get enough money together to merely survive, let alone fulfil my study requirements as part of my apprenticeship.

I had surprisingly lost my job the day I got back from a week of studying TAFE. Therefore, I had no income to support my family and their needs.

I also had to find new employment within the same timeframe, before I went away for TAFE again.

All of this while battling my own mental health issues, which given the circumstances had me facing new challenges within myself. Just to meet the needs of my home was a challenge itself, let alone then having to have a few thousand dollars to try and keep going to TAFE.

I had even tried to resolve an underpayment issue regarding allowances not paid by the respondent to assist in getting enough money to afford to attend TAFE in Sydney.”

[15] Mr Artery provided evidence of his financial circumstances are over the relevant period including screenshots of his bank account balance at different times, receipts for accommodation, travel and other expenses during his attendance in Sydney at TAFE.

[16] I accept from this evidence that Mr Artery was in the unenviable position of having very little money, ongoing financial commitments, and considerable uncertainty about his future.

[17] The Commission allows applicants to apply for a waiver of filing fees based on financial circumstances. When Mr Artery was asked about why he did not apply for a waiver of his application fee he indicated that (1) he didn’t know he could make such an application, (2) he borrowed money from his mother specifically to make the application and (3) he didn’t realise his application was late when he lodged it.

[18] It is apparent from Mr Artery’s explanation that his financial circumstances were not a significant cause of the delay. I do not think Mr Artery tried to deceive the Commission by relying on his financial circumstances, rather it seems apparent that even if Mr Artery had sufficient funds to make his application earlier than 24 May 2021, he is unlikely to have filed earlier because, on his own account, he did not think he was late. That is, the active reason that caused Mr Artery’s claim to be late was the fact that he thought he had more time. I accept that Mr Artery was very concerned about his financial circumstances, however that concern does not appear to have caused a delay.

[19] In considering Mr Artery’s belief that he had more time, I have carefully assessed the information that was available to Mr Artery during the relevant time. He was dismissed in a telephone call with Mr Gavin Case on 30 April 2021. Mr Case says that in the phone call on 30 April he advised Mr Artery that the dismissal would be “effective immediately”. The next day, Saturday 1 May 2021, Mr Artery went to the workplace to collect his tools and had a further conversation with Mr Case. Mr Case gave evidence that Mr Artery “demonstrated aggressive and rude behaviour” in the conversation on 1 May 2021. On Monday 3 May 2021 Mr Artery sent an SMS to Mr Case in the following terms:

“Hey gav just wanted to say thanks to you and Heidi for the last couple of years and for giving me the chance to get a trade and teaching me the game. Really do appreciate it and I wish you guys and your family nothing but the best. And sorry for being a dick Saturday. Angry for no reason. Thanks mate”

[20] On 3 May 2021 the Respondent paid annual leave, outstanding wages in two weeks’ pay in lieu of notice to Mr Artery. The Respondent issued a payslip to Mr Artery on the same day that clearly indicates that the Respondent paid 76 hours pay “in lieu of notice”.

[21] Generally lodging an application late because of a mistaken belief about the effective date of the dismissal is not an exceptional circumstance. Specifically, from the information available to Mr Artery, I cannot find that Mr Artery’s misbelief was reasonable or constitutes exceptional circumstances.

[22] Even if the conversation with Mr Case on 30 April 2021 left Mr Artery uncertain about his employment status, his visit to the Respondent’s premises the next day to collect his tools could not have left him in any doubt that his employment with the Respondent had ceased. More so, I am satisfied that Mr Artery understood that his employment had ceased on Friday 30 April 2021 because of his unambiguous recognition of the cessation of his employment in the SMS he sent on 3 May 2021.

[23] Mr Artery relied on his poor mental health at the time. It is not necessary for me to record the details of Mr Artery’s mental health challenges in this public decision, except to say that Mr Artery’s evidence was important to my deliberations.

[24] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.⁷

[25] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.

[26] Mr Artery provided no medical evidence at all to support his case. During the time between the dismissal and the making of the application Mr Artery was able to engage in many activities including travelling to Sydney to attend TAFE for one week, searching for new employment and also making contact with the Respondent to pursue an underpayment claim relating to tool allowances he thought were owing. Mr Artery had capacity to do these activities, and the absence of any specific medical evidence about Mr Artery’s capacity, I cannot find that Mr Artery’s mental illness impaired his capacity to prepare and file an application.

[27] In taking into account all of the above, Mr Artery’s explanation for the delay does not point towards the existence of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[28] I am also required to take into account “whether [Mr Artery] first became aware of the dismissal after it had taken effect”. 8

[29] I accept the somewhat obvious proposition that exceptional circumstances might exist when an applicant is not aware that a dismissal has taken effect until a later date. On the evidence before me I do not accept that exceptional circumstances of this kind arose. As recorded earlier in this decision, I am satisfied that by 30 April 2021, if not then by 1 May 2021, Mr Artery was aware that his dismissal had taken effect on 30 April 2021.

[30] As such, Mr Artery 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 is a neutral consideration.

Action taken to dispute the dismissal

[31] In taking into account “any action taken by the person to dispute the dismissal”. 9 I note that Mr Artery took no other steps to dispute his dismissal prior to making his unfair dismissal remedy application save for raising an underpayment claim regarding tool allowances.

[32] This is not a factor that supports the existence of any exceptional circumstances nor the exercising of the Commission’s discretion to grant an extension of time.

Prejudice to the employer

[33] I must consider the “prejudice to the employer (including prejudice caused by the delay).” 10

[34] The Respondent accepts, quite properly, that there was no specific prejudice suffered because of the delay.

[35] Given that the delay is very short, it is unsurprising that there is a no prejudice to the employer. In these circumstances the absence of prejudice does not weigh in favour of a finding of exceptional circumstances. 11

Merits of the application

[36] Section 394(3)(e) requires that I take into account “the merits of the application” when considering whether there are exceptional circumstances and the extension of time more generally.

[37] Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice. 12

[38] In this context it is sufficient that an applicant establish that their claim is not without merit. 13 The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.14

[39] As described above, the Respondent says it gave Mr Artery a warning on 23 April 2021, was told on 28 April 2021 that Mr Artery had engaged in further unsatisfactory conduct and dismissed Mr Artery by telephone on 30 April 2021. Mr Artery did not attend the workplace between 23 April and 30 April and denies that his contact with the other employee in the same period was inappropriate.

[40] Mr Artery’s submission about the merits of his claim included the following:

“I also believe that I was notified of the dismissal after it had taken affect as I was phoned by the respondent at approximately 6pm on the 30th of April. Given that that was a Friday evening, I believe that the 30th is not a realistic date for dismissal to have taken affect, being that the phone call was taken after hours and on a Friday afternoon. I was then told I had to come in the morning on a Saturday and get my tools.

I didn’t get a chance to dispute the dismissal as I had already been told on the phone what was happening and I believe that even if I had of had a chance to dispute it, the respondents stated his mind had already been “made up”as it suited the agenda of the business and as stated by the respondent that “it had to happen for my marriage and for the business to go ahead” referring to my dismissal and the introduction of new management.”

[41] For present purposes I am prepared to find that Mr Artery does have an arguable case. However I do not consider the merits of the present case point towards a finding that there are exceptional circumstances. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[42] Finally I must take into account “fairness as between the person and other persons in a similar position.” 15 This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Artery and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

The mandatory factors collectively

[43] As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances. 16

[44] In this case none of the above matters considered individually point towards there being any exceptional circumstances. For completeness I am still not satisfied that there are exceptional circumstances after reviewing the above matters collectively.

Conclusion

[45] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Mr Artery, 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 therefore decline to grant an extension of time under s.394(3) and Mr Artery’s application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr T Artery, Applicant
Mr T Traill, for the Respondent

Hearing details:

2021.
Sydney (By Telephone)
15 July.

Printed by authority of the Commonwealth Government Printer

<PR731973>

 1   Toby Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130.

 2   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [24].

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901

 4   Fair Work Act 2009 (Cth), s.394(3)(a).

5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].

 6   Diotti v Lenswood Cold Stores Co-op Society (t/as Lenswood Organic) (2016) 258 IR 110, [2016] FWCFB 349 at [31].

7 Glyn Roberts v Westech IT Solutions Pty Ltd[2014] FWC 4226, Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287, Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWCFB 3435, Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services)[2020] FWCFB 3523, Beard v Valley Industries Limited[2020] FWC 4523 and Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group[2021] FWC 3903.

 8   Fair Work Act 2009 (Cth), s.394(3)(b).

 9   Fair Work Act 2009 (Cth), s.394(3)(c).

 10   Fair Work Act 2009 (Cth), s.394(3)(d).

 11   Miller v DPV Health Ltd [2019] FWCFB 6890 at [21] citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149at [38].

 12   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].

 13   Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168

 14   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [71]

 15   Fair Work Act 2009 (Cth), s.394(3)(f).

 16   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 at [38]-[39].