Trevor Richey v Valley Protective Services Pty Ltd

[2020] FWC 1976

[2020] FWC 1976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Richey
v
Valley Protective Services Pty Ltd
(U2020/394)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 16 APRIL 2020

Unfair dismissal application – when dismissal of casual employee took effect – extension of time granted.

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:

•  Mr Trevor Richey’s unfair dismissal application (Application) against Valley Protective Services Pty Ltd (VPS) was filed more than 21 days after his dismissal took effect?

•  If so, should I exercise my discretion to allow Mr Richey a further period for his Application to be made against VPS?

Hearing

[3] On 8 April 2020, a hearing, by telephone, was conducted in relation to these matters. Mr Richey gave oral evidence and tendered a number of documents. VPS tendered two documents and cross examined Mr Richey.

[4] Following the hearing on 8 April 2020, each party was given an opportunity to make further submissions in relation to issues which arose as a result of information provided to the Commission during the hearing. Mr Richey filed further submissions on 15 April 2020.

Relevant facts

[5] Mr Richey was employed by VPS as a casual security guard for a number of years. He worked primarily at the Kempsey Base Hospital, usually three shifts per week.

[6] Mr Richey ordinarily received a text message each Tuesday or Wednesday informing him of his shifts for the following week.

[7] On 13 November 2019, Mr Richey and his supervisor, Mr Dean Parish, communicated by the following text messages:

Mr Parish:

“Trevor your roster starting

18-11-2019
Monday
Kdh
2000-0600
Thursday
Central iga
1200-1600
Friday
Macleay valley house
1600-2300
Sunday
Kdh
2000-0600

Roster subject to change. .

Good with that trevor?

Cheers dean”

Mr Richey:

“All good but not available Thursday 21.11.19. Sorry”

Mr Parish:

“Your [sic] kidding”

Mr Richey:

“Sorry no”

Mr Parish:

“Are you out of town that day?

We have no one else to cover that shift.

Never mind York [sic] roster will be changed for next week.”

Mr Richey:

“It can’t be helped my health conrs [sic] first.. Thank you let me know then”

Mr Parish:

“You haven’t mentioned your health. I did ask are you out of town. A yes or no answer will be fine”

Mr Richey:

“It is health reason and yes I will be out of Kempsey for the day”

Mr Parish:

“I have just spoken to Scott we do not have a roster for you next week.

Thank you.”

Mr Richey:

“That’s fine then”

Mr Parish:

“You left us no choice”

Mr Richie:

“Ok”

[8] On 14 November 2019, Mr Richey sent a text message to Mr Parish to inform him that he was “At KDH”. Mr Parish responded, “Thank you”.

[9] Mr Richey did not undertake any work for VPS in the week commencing 18 November 2019. Mr Richey’s last shift for VPS was on 17 November 2019.

[10] In accordance with VPS’s usual practice, Mr Richey expected to receive a text message on Tuesday, 19 November 2019 or Wednesday, 20 November 2019 informing him of his rostered shifts for the following week. Mr Richey did not receive any such text message. Mr Richey did not receive another work roster from VPS after 13 November 2019.

[11] On Saturday, 23 November 2019, Mr Richey sent an email in the following terms to Mr Scott Braund at his personal email address:

“Hi Scott.

As I no longer receive a roster I would believe that I have been terminated. That being the case I request a Employment Separation Certificate to be issued. Please note the correct spelling of my name is Trevor RICHEY you can email it to me or send it to [Mr Richey’s personal address]

Thanks Trevor”

[12] Mr Richey gave oral evidence, which I accept, that although he believed on 23 November 2019 that he had been terminated, he was unsure whether that was the case and was waiting for confirmation.

[13] Mr Richey sent his email to Mr Braund on 23 November 2019 because Mr Braund was the owner of the business at the time Mr Richey started working for it and Mr Richey was not aware that there had been any change in the ownership of the business.

[14] Ms Verhagen informed the Commission at the hearing on 8 April 2020 that she bought the business from Mr Braund in about mid 2016 and has been the sole director and shareholder of VPS since that time. As at the date of Mr Richey’s email to Mr Braund (23 November 2019), Mr Braund was still employed by VPS as a Supervisor, albeit in a different area of the business to the one in which Mr Richey worked.

[15] Mr Richey waited over a week for a response to his email to Mr Braund, but did not receive any response. At that point Mr Richey suspected that he would never be offered any further shifts at all by VPS, and suspected that the reason for this was because he could not accommodate the single “irregular” shift that VPS wanted him to work in the week commencing 18 November 2019 because it clashed with Mr Richie’s medical appointment.

[16] On 29 November 2019, Ms Verhagen faxed an Employment Separation Certificate pertaining to Mr Richey to Centrelink, however a copy of it was not sent to Mr Richey. The Employment Separation Certificate is dated 29 November 2019. It states that Mr Richey’s employment with VPS ceased on 17 November 2019 and the “reason for separation” was “unsuitability for this type of work”.

[17] In early to mid December 2019, Mr Richey commenced making efforts to obtain legal advice about his “options”. Despite his extensive efforts, Mr Richey was unable to obtain an appointment with a solicitor with employment law expertise until 10 January 2020.

[18] On Christmas Day 2019, Mr Richey and Mr Parish exchanged the following text messages:

Mr Parish:

“Merry Christmas trevor I hope your [sic] well and you have a great day.”

Mr Richey:

“Merry Christmas to you and your family. Have a good day”

Mr Parish:

“Cheers mate nice to hear from you ��”

[19] On 10 January 2020, Mr Richey obtained advice from Mr Brigden, solicitor, of Priest Legal. Mr Brigden informed Mr Richey of the existence of the 21 day time limit for making an unfair dismissal application. This was the first time that Mr Richey became aware of the existence of the 21 day time limit. Mr Richey’s Application was filed in the Commission on 10 January 2020.

[20] Because Mr Richey had not received any communication from VPS as to whether his employment had been terminated, he sent the following text message to Mr Braund on 10 January 2020:

“Hi Scott its Trevor can you tell me am I still employed? If not I need you to send me a Certificate of Separation for Centrelink please. Thank you Trevor”

[21] Mr Richey did not receive a response to this text message.

[22] The first time that Mr Richey received communication from VPS that his employment had been terminated was during the conciliation conference in the Commission on 10 March 2020 when Mr Richey received VPS’s Employer Response to his Application.

[23] During the hearing on 8 April 2020, Ms Verhagen informed the Commission that:

•  VPS did not provide Mr Richey with any oral communication of his dismissal at any time prior to Mr Richey filing his unfair dismissal application in the Commission; and

•  VPS did not provide Mr Richey with any written communication of his dismissal at any time prior to Mr Richey filing his unfair dismissal application in the Commission.

When did Mr Richey’s dismissal take effect?

[24] In Ayub v NSW Trains (Ayub), 3 a Full Bench of the Commission considered when a dismissal takes effect under s 394(2) of the Act (references omitted):

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated...

[35]We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.

[36]Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.

…

[41]We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision. In relation to statutory provisions governing public sector employment, we have already noted what was said by the Full Bench in ATO v Wilson about the Public Service Act 1999. We do not consider that such legislation could establish an effectively retrospective date of effect of a dismissal for the purpose of s.394(2)(a) of the FW Act unless that was made clear by express words or by necessary implication. There is no such provision in the Public Service Act as it currently stands.

[42]We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.

…

[48]Nonetheless the critical point made in Gisda Cyf that the shortness of the period allowed to lodge a claim must inform the way in which the time-limiting provision is interpreted is valid in the context of the FW Act. Indeed the proposition is a fortiori given that time period allowed by the FW Act is much shorter and the circumstances in which an extension of time may be obtained are more constrained. An interpretation of s.394(2)(a) which would have the practical effect of reducing further what is already a very limited opportunity to lodge an unfair dismissal claim would be rejected if another is reasonably available. Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.

[49]In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.

[50]In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”

[25] As the Full Bench pointed out in Ayub (at [17]), an employer may communicate a dismissal to an employee “by plain or unambiguous words or conduct”. Most cases will involve the communication of words, whether they be spoken or written. However, in some cases it is necessary to consider the conduct of the parties to determine whether such conduct constitutes plain or unambiguous communication of a dismissal.

[26] Because the question of whether an employment relationship continues to exist is a question of fact, 4 it is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by conduct. The test is objective; it is not determined by the subjective belief or understanding of either party. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,5 whether either party has communicated to the other party a decision to terminate the relationship, and the terms of the employment contract.

[27] In the present case, the text messages between Mr Parish and Mr Richey on 13 November 2019, the contents of which are set out in paragraph [7] above, do not constitute communication of any decision by VPS to dismiss Mr Parish. At their highest, those text messages informed Mr Richey that VPS did “not have a roster for [him] next week”.

[28] There is no dispute on the evidence, and I find it to be the case, that the first time VPS communicated to Mr Parish in words, whether written or oral, its decision to dismiss him was on 10 March 2020. This is not a case in which VPS sent a written communication to Mr Parish of his dismissal and he took some time to read the communication.

[29] As to whether VPS communicated its dismissal of Mr Parish by plain or unambiguous conduct, it is relevant that:

•  Mr Richey had worked for VPS on a regular basis as a casual employee for some years prior to his dismissal. He usually worked three shifts per week at the Kempsey Base Hospital, together with other shifts from time to time at other locations;

•  each Tuesday or Wednesday Mr Richey received a roster, by text message, from his Supervisor for the shifts for the following week;

•  on 13 November 2019, Mr Richey received his roster for the week commencing 18 November 2019. Later on 13 November 2019, after Mr Richey informed Mr Parish that he could not work the shift on 21 November 2019, Mr Parish informed Mr Richey that VPS did not have a roster for him for “next week”. It is plain from Mr Parish’s text messages to Mr Richey that VPS was not pleased with what it considered to be late notice by Mr Richey of his unavailability to work on 21 November 2019;

•  Mr Richey did not undertake any work for VPS in the week commencing 18 November 2019. His last shift for VPS was on 17 November 2019. There is no suggestion in the evidence that VPS lost its contract to provide security services at the Kempsey Base Hospital after mid November 2019;

•  Mr Richey did not receive a roster on Tuesday, 19 November or Wednesday, 20 November 2019, for the following week. The last roster Mr Richey received from VPS was on 13 November 2019;

•  because Mr Richey was no longer receiving a roster, he sent an email to Mr Braund on 23 November 2020 stating, “I would believe that I have been terminated. That being the case I request a Employment Separation Certificate to be issued”. VPS did not respond to that email;

•  VPS faxed an Employment Separation Certificate to Centrelink on 29 November 2019, albeit it did not inform Mr Richey that it had done so and it did not send a copy of the Employment Separation Certificate to Mr Richey; and

•  Mr Richey waited about a week after sending his 23 November 2019 email to Mr Braund and after he had not received a response, he made efforts to obtain legal advice in relation to his employment with VPS.

[30] Having regard to these facts and circumstances, I find that VPS communicated to Mr Parish its dismissal of him by unambiguous conduct. I accept Mr Richey’s primary submission that Mr Richey’s dismissal took effect on Monday, 2 December 2019. That was about a week after Mr Richey sent his email to Mr Braund on Saturday, 23 November 2019, to which Mr Richey did not receive a response.

[31] I do not accept VPS’s contention that the dismissal took effect on 17 November 2019. That was the date of Mr Richey’s last shift for VPS, but there was no communication by VPS to Mr Richey, whether by words or conduct, on or prior to that date of his dismissal.

[32] In the event that I am found to be wrong in my conclusion that Mr Richey’s dismissal took effect on 2 December 2019 and a finding is made that the dismissal did not take effect until the dismissal was communicated to Mr Richey by express words on 10 March 2020, then Mr Richey’s Application was not filed more than 21 days prior to when his dismissal took effect and there would be no need for Mr Richey to obtain an extension of time under s 394(3) of the Act. Had I made such a finding, I would have exercised my discretion under s 586(b) of the Act to waive the irregularity in the manner in which Mr Richey made his Application, namely, by prematurely filing his Application before his dismissal took effect. The factors relied on by Deputy President Clancy in Draper v Delta Facilities Management Pty Ltd 6are also largely applicable in this case and would warrant exercising the discretion favourably towards Mr Richey.7

Should time be extended?

[33] I will now consider whether to exercise my discretion to extend time for the Application to be made.

[34] 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.”

[35] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 8

[36] 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. 9 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.”   

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

[37] 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 a credible reason for the delay, or any part of the delay, beyond the 21 day period. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,11the 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.”

[38] 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: 12

“[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.”

[39] As to acceptable explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 13

[40] Mr Richey relies, in part, on representative error on the part of solicitors he contacted, or attempted to consult, in December 2019 to obtain advice about his dismissal. A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 14 In Clark v Ringwood Private Hospital,15 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

•  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.

•  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.

•  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.

•  Error by an applicant’s representatives is only one or a number of factors to be considered in deciding whether or not an out of time application should be accepted.

[41] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 16

Relevant chronology of events and reasons for delay

[42] For the reasons stated, Mr Richey’s dismissal took effect on 2 December 2019. The 21 day time period for Mr Richey to make his Application expired on 23 December 2020. 17 Given that Mr Richey filed his Application on 10 January 2020, the Application was filed 18 days late.18

[43] In accordance with the principles summarised in paragraphs [37]-[38] 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 23 December 2019 to 10 January 2020. However, the circumstances from the time of the dismissal on 2 December 2019 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.

[44] I do not accept Mr Richey’s argument that representative error provided an acceptable explanation for the delay in filing the Application. Mr Richey did not engage a solicitor to provide him with advice prior to his conference with Mr Brigden on 10 January 2020. Mr Richey attempted to obtain advice from other solicitors, but he was unable to obtain an appointment with them, either because they were too busy in the lead up period to Christmas or they did not have expertise in employment law. In circumstances where a solicitor has not been engaged to provide advice, there is no error on the part of the solicitor in not advising or informing a prospective client such as Mr Richey about time limits for particular causes of action.

[45] Mr Richey was not aware of the 21 day time limit for filing an unfair dismissal application prior to his conference with Mr Brigden on 10 January 2020. However, ignorance of the time limit is not an acceptable explanation for a delay. 19

[46] I accept that Mr Richey, despite his reasonable efforts, was not able to obtain advice from a solicitor prior to 10 January 2020. However, I do not consider this to be an acceptable explanation for any part of the delay because relevant and appropriate information about filing an unfair dismissal application, which is a simple process, is available from, inter alia, the Commission.

[47] I accept that a material and operative reason for part of Mr Richey’s delay in filing his Application was the failure of VPS to provide any express communication, either orally or in writing, to Mr Richey that his employment with VPS had come to an end. This finding is supported by Mr Richey’s oral evidence, which I accept, that he did not file his Application within 21 days because he was unsure whether he had been terminated and was waiting for receipt of an Employment Separation Certificate.

[48] To the extent that Mr Richey’s delay in filing his Application was caused by the failure of VPS to provide any express communication, either orally or in writing, to Mr Richey that his employment with VPS had come to an end, I am of the view that Mr Richey had an acceptable explanation for this part of the delay.

[49] I have found that a number of the reasons given by Mr Richey for the delay in filing his Application were not acceptable. I have also found that insofar as the delay in filing his Application was caused by the failure of VPS to provide any express communication, either orally or in writing, to Mr Richey that his employment with VPS had come to an end, Mr Richey had an acceptable explanation for this part of the delay. Having considered and weighed up the various contributing factors to the delay in filing the Application, I am of the view that this criterion (s 394(3)(a)) weighs in favour of 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

[50] Given that Mr Parish had not received any work rosters from VPS since 13 November 2019 and had not undertaken any work for VPS since 17 November 2019, it is not surprising that in late November and December 2019 Mr Parish had an honest and reasonable belief concerning the termination of his employment with VPS. But it was also reasonable for him to seek some confirmation as to that belief in the form of a communication, whether oral or in writing, from VPS before forming a concluded view about the termination of his casual employment with VPS. No such communication was made to Mr Parish until 10 March 2020, notwithstanding that Mr Parish expressly requested, in writing, such confirmation on 23 November 2019 and again on 10 January 2020. There is no good reason why VPS did not send a copy of the Employment Separation Certificate to Mr Richey at about the same time as it was sent to Centrelink on 29 November 2019. At the very least, VPS should have informed Mr Richey, in writing or orally, in late November 2019 that his employment with VPS was at an end. In my view, it is out of the ordinary course, or unusual, for an employer to make a decision to dismiss an employee, communicate that decision to Centrelink by way of the provision of an Employment Separation Certificate, but not to communicate the decision to dismiss orally or in writing to the employee, particularly in circumstances where the employee has expressly sought confirmation from a Supervisor employed by the employer.

[51] Mr Richey’s dismissal took effect on 2 December 2019, but he did not become aware of it until either 10 January 2020 (when he obtained legal advice and his Application was filed) or 10 March 2020 (when he was informed by VPS of his decision to dismiss him). In either case and for the reasons given, this factor (s 394(3)(b)) weighs in favour of a finding of exceptional circumstances and granting an extension of time.

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

[52] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 20

[53] I accept that Mr Richey took steps in December 2019 and early January 2020 to obtain advice from a number of different solicitors about his employment with VPS. Accordingly, this factor (s 394(3)(c)) weighs, to a small extent, in favour of granting an extension of time.

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

[54] Prejudice to the employer will weigh against granting an extension of time. 21 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.22

[55] A long delay gives rise “to a general presumption of prejudice”. 23

[56] 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. 24 VPS did not adduce any evidence on the issue of prejudice.

[57] Noting that the delay was 18 days, I am satisfied that there would be no greater prejudice to VPS 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 VPS is a neutral consideration.

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

[58] Mr Richey contends that his dismissal was harsh, unjust or unreasonable. He submits that he was employed by VPS as a casual employee on a regular and systematic basis and had a reasonable expectation of continuing employment by VPS on a regular and systematic basis. Mr Richey contends that the real reason for his dismissal was the fact that he was unable to work an “irregular” shift outside of his normal and systematic hours of work, because the shift clashed with a pre-booked medical appointment. Mr Richey submits that he was not notified of any reason for his dismissal and was not given an opportunity to respond to any reason related to his capacity or conduct.

[59] VPS contends that Mr Richey was constantly requesting changes to his roster after it was completed. VPS also contends that Mr Richey was informed of the requirement to advise VPS of any unavailability prior to work rosters being completed, but Mr Richey failed to comply with this requirement. VPS submits that Mr Richey’s late notification of his unavailability to work on 21 November 2020 must be viewed in this context.

[60] I am not able to make an assessment of the merits at this time because there are factual disputes between the parties relevant to the ultimate question of whether Mr Richey’s dismissal was harsh, unjust or unreasonable; detailed evidence and cross examination of relevant witnesses would be required in order to make findings in relation to such disputes. In all the circumstances, I consider this criterion (s 394(3)(e)) to be neutral.

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

[61] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 25 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.”

[62] No evidence was adduced and no submissions were made regarding fairness as between Mr Richey and other persons in a similar position. 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

[63] Having taken into account each of the factors referred to in s 394(3)(a) to (f) of the Act, I am satisfied that there are exceptional circumstances. In making this evaluative assessment, I am particularly (but not solely) influenced by the fact that VPS made a definite decision to dismiss Mr Richey in late November 2019, but did not communicate, orally or in writing, to Mr Richey that he was dismissed, notwithstanding Mr Richey’s request to Mr Braund, a Supervisor employed by VPS, for such confirmation and the provision by VPS of an Employment Separation to Centrelink on 29 November 2019. In my view, it is out of the ordinary course, or unusual, for an employer to conduct itself in this way.

[64] The exceptional circumstances threshold having been met, I am also satisfied, for the same reasons, that it is appropriate to exercise my discretion to extend time.

[65] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue an order extending time to 10 January 2020 [PR718299].

DEPUTY PRESIDENT

Appearances:

Mr Brigden, solicitor, on behalf of the applicant.

Ms Verhagen, Director,on behalf of the respondent.

Hearing details:

2020.

Newcastle:

8 April.

Final written submissions:

15 April 2020

Printed by authority of the Commonwealth Government Printer

<PR718298>

 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   [2016] FWCFB 5500

 4   Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [27]

 5   Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404; Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 at 24 & 35; Forstaff v Chief Commissioner of State Revenue (2004) 144 IR 1 at [91]

 6   [2017] FWC 4071

 7   See, too, Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070

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

 9 [2011] 203 IR 1

 10   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]

 11   [2016] FWCFB 349

 12   [2018] FWCFB 3288 at [35]-[45]

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

 14   See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802

 15 (1997) 74 IR 413 at 418-9

 16   Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]

 17   That is, 21 days from 2 December 2019 (not including 2 December 2019) is 23 December 2019.

 18   10 January 2020 is 18 days after 23 December 2019.

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

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

 21   Ibid.

 22   Ibid.

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

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

 25   [2016] FWCFB 6963