Troy Edmonds v Rise Above Aerial Cinematography Pty Ltd

[2019] FWC 8402

[2019] FWC 8402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Troy Edmonds
v
Rise Above Aerial Cinematography Pty Ltd
(U2019/8828)

COMMISSIONER CAMBRIDGE SYDNEY, 18 DECEMBER 2019

Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Troy Edmonds (the applicant) and the respondent employer is Rise Above Aerial Cinematography Pty Ltd (the employer).

[2] The application was lodged with the Fair Work Commission (the Commission) at Sydney on 9 August 2019. The application indicated that the date that the applicant’s dismissal took effect was “Aug 16^th”. Further, the application also indicated that the applicant was notified of dismissal on “16/07/19”. Consequently, it appeared that the inclusion of the date “Aug 16^th” was made in error, and the relevant date that the dismissal took effect was 16 July 2019. Therefore, the application was pima facie, made some 3 days after the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] On 11 September 2019, the employer filed a response to the application (Form F3) which identified three jurisdictional objections to the application. Firstly, the employer asserted that the date that the applicant’s dismissal took effect was “12.7.19”. In any event, whether the date that the applicant’s dismissal took effect was 12 or 16 July 2019, the employer raised objection on the basis that the application, made on 9 August 2019, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection).

[4] Secondly, the employer objected to the application on the basis that the dismissal of the applicant was a case of genuine redundancy. Thirdly, the employer raised further jurisdictional objection to the application on the basis that the employer was a small business and it had complied with the Small Business Fair Dismissal Code (SBFD Code).

[5] Conciliation of the matter that had been listed for 11 September 2019, did not proceed because the employer requested that the out of time objection be determined as a discrete initial matter. On 12 September 2019, Catanzariti VP sent a letter to the applicant which, in summary, required that the applicant provide documentary material upon which exceptional circumstances could be established in order to permit the matter to proceed over the out of time objection raised by the employer.

[6] On 19 September 2019, the applicant provided the Commission with a report from his treating psychologist dated 15 September 2019, as material upon which the applicant relied in opposition to the out of time objection. On 20 September 2019, the contested out of time objection to the application was allocated to the Commission as currently constituted for determination.

[7] On 1 October 2019, the Commission convened a telephone Pre-Hearing Conference during which permission was granted under s. 596 of the Act for either of the Parties to be represented by lawyers or paid agents. Further, the Commission issued Directions for the filing and service of submissions and evidentiary material in support of the respective positions regarding the out of time objection.

[8] In due course the Parties filed their respective documentary materials. Further, neither Party has indicated that they were not content for the out of time objection to be determined upon the documentary material which had been filed, and without any requirement for a Hearing.

Relevant Factual Background

[9] The applicant had worked for the employer for about one year and two months. The applicant was engaged in a position described as; R&D Custom UAV Technical Manager.

[10] On Friday, 12 July 2019, the applicant was one of three employees who were verbally advised of the termination of their employment due to redundancy. The applicant was provided with a letter dated 15 July 2019, that confirmed the verbal advice of the termination of his employment due to redundancy arising from “expected investment not occurring”. The termination of employment advice also stipulated that the applicant would be provided with a two week notice period during which it was anticipated that the applicant would continue to work.

[11] On either Monday 15 or Tuesday 16 July 2019, the applicant lodged a worker’s compensation claim and he did not attend for work during the remainder of the two week notice period. On 16 July 2019, the applicant and the employer’s managing director Mr Mehdi, commenced a series of text message exchanges which involved disputation about the applicant allegedly removing or deleting particular files from his work computer, and the employer withholding payment of the applicant’s accrued and other entitlements as a result of these alleged actions.

[12] On 16 July 2019, the applicant received an email communication from a client services officer at the Commission which relevantly confirmed that the applicant had made an application involving a fee waiver request. However, the fee waiver application had not been accompanied by a completed application form, and the client services officer relevantly advised the applicant that should he wish to lodge an application he should urgently contact the Commission and provide a completed copy of the relevant application. This communication from the client services officer of the Commission noted that applications must be lodged within specific timeframes, and applications lodged outside of these timeframes may be dismissed.

[13] In response to this advice, the applicant replied; “Hello I will be filing a case but have no money now. Please review enclosed file for approvals thank you”. Subsequently the applicant was provided with further advice from Commission staff that confirmed that his unfair dismissal application had been received electronically and was taken to have been lodged on 9 August 2019.

The Employer's Case in Support of the Jurisdictional Objection

[14] The submission material provided by the employer commenced by asserting that the applicant had not provided any explanation other than duress and anxiety as to why he did not submit the unfair dismissal application within the required timeframe. Further, the employer stated that although the applicant had stated that he did not complete the application as he was being withheld payment of wages, that was entirely untrue according to the submissions made by the employer.

[15] The employer provided further submissions which sought to address and rebut a variety of issues that the applicant had raised regarding aspects of his employment conditions and complaints that he had made whilst he had been employed. The various matters that were included in the material provided by the applicant, and which the employer sought to respond to, were not issues that were directly relevant to the determination of the contested out of time objection.

[16] In summary, the submissions made by the employer asserted that the application had been made out of time, and no satisfactory explanation had been provided by the applicant. The employer submitted that the application should be dismissed accordingly.

The Applicant’s Case in Opposition to the Jurisdictional Objection

[17] The applicant provided material in the form of a mixture of assertions of fact and wide-ranging submissions to support his opposition to the out of time objection raised by the employer. A significant amount of the material provided by the applicant involved issues relating to aspects of his employment which had given rise to complaint or other concern, as opposed to material upon which exceptional circumstances might be established in order to permit his application to proceed notwithstanding that it had been made out of time.

[18] The submissions made by the applicant were supported by a medical report of his treating psychologist and by implication, the applicant’s state of anxiety including panic attacks, hypervigilance and depressive mood, impacted upon his cognitive abilities to concentrate. Thereby, the applicant’s state of mental health was asserted to provide some explanation for the delay with making the unfair dismissal application within the 21 day time limit.

[19] The applicant also provided material which confirmed that there had been post dismissal disputation involving delay with payment of wages and accrued entitlements. This material gave rise to the implied assertion that a further reason for the delay in making the unfair dismissal application involved the applicant’s ongoing pursuit of wages and accrued entitlements. In addition, evidence of the applicant making claim for fee waiver and his apparently impecunious circumstances provided further implied basis for explanation for the late lodgement of his unfair dismissal claim.

[20] The submissions made by the applicant also mentioned that he had been under enormous pressure because his wife and children were overseas and that his wife was considering divorce due to the loss of his job. Further, the applicant stated that he was 54 years of age and disabled, and the dismissal had caused him serious medical mental stress. The applicant stated that these factors caused him to file the application slightly late.

[21] In summary, the applicant provided material from which it could be identified that the explanation for the delay with filing his unfair dismissal claim involved; his serious medical mental stress; his lack of money; and; the ongoing disputation about failure of the employer to pay wages and other accrued entitlements. Further, by implication, the various employment related issues that the applicant raised in his material may be said to have indicated that he had raised dispute with the employer about his dismissal, and that there was identifiable merits in respect to the application if it was permitted to proceed to Hearing and Determination. This material, when considered in its totality, provided by way of implied submission, that exceptional circumstances existed, and the application for an extension of time for the lodgement of the claim for unfair dismissal should be granted.

Consideration

[22] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established.

[23] In this case, the application was filed on 9 August 2019, which was some 24 days after the day on which the applicant alleged that the dismissal took effect. Therefore the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 3 days after the expiry of the 21 day time limit.

[24] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) is in the following terms:

“(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.”

[25] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.

[26] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[27] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.

[28] In this case the delay was 3 days relevant to the 21 day time limit. Consequently, the period of the delay could not be described as significant in the context of the statutorily prescribed time limit.

Subsection 394 (3) (a) - The Reason for the Delay

[29] In this instance, the reason for the delay as can most appropriately be discerned from the material provided by the applicant, involved a combination of three primary components. The first component involved the state of the applicant’s mental health which was confirmed by way of a report from his treating psychologist. The second component related to the applicant being impecunious, and therefore unable to pay the required lodgement fee. The third component which was by implication, an asserted reason for the delay, was the ongoing disputation between the applicant and the employer about the alleged failure to pay wages and accrued entitlements.

[30] The applicant’s state of mental health would no doubt have created difficulties for him in completing and lodging the unfair dismissal application form. However, it is relevant to note that the applicant provided evidence of his email exchange with a client services officer of the Commission on 16 July 2019. This evidence does not suggest that the applicant’s state of mental health would have prohibited him from making a claim at that early time. Instead, the applicant suggested that he could not make the claim because he had no money at that time.

[31] Upon careful consideration of this evidence, the first two components of the apparent reasons for the applicant’s delay with making his claim for unfair dismissal cannot be factually substantiated. The applicant had sufficient mental fitness to make an application for a fee waiver request, and he was advised by staff of the Commission that any such request would be given due consideration. The Commission staff further advised the applicant that he should accompany a request for fee waiver with a completed application form made within the specific timeframes. At this time, circa July 16, neither the applicant’s mental condition nor his impecuniousness prevented him from completing the unfair dismissal claim form and the fee waiver request.

[32] It would be understandable that an employee that was engaged in ongoing disputation about payment of wage and accrued entitlements might delay the making of an unfair dismissal claim in the belief that any such claim might harden the employer’s position in such disputation. However, in the knowledge that there were specific timeframes for the lodgement of an application, and that an application which is lodged outside of these timeframes may be dismissed, the applicant would have been enlivened to the requirement to ensure that the claim was made within time.

[33] On any reasoned and objective contemplation, the reasons for delay in making the application, namely, that the applicant had mental health issues, was impecunious, and was engaged in the pursuit of outstanding entitlements, could not be sustained as sound, acceptable reasons for delay. In simple terms, the applicant had mental capacity demonstrated by his application to the Commission for a fee waiver request on 16 July 2019. The fee waiver request would have dealt with his alleged impecuniousness, and his disputation with the employer over outstanding wages and entitlements would have justified delay only up until shortly before the recognised expiry of the 21 day time limit.

[34] Consequently, when the reasons for the delay are carefully and objectively considered, they do not provide a sound and acceptable reason having regard for what might be anticipated as the logical, reasonable evaluation of the circumstances as would be expected of a person who was seriously and diligently taking all reasonable steps in the pursuit of a contest against the termination of their employment.

Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect

[35] The applicant first became aware of his dismissal on Friday, 12 July 2019, when he was verbally advised of his redundancy. Consequently, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal

[36] The applicant did take action to dispute his dismissal. That dispute included contest about wage and other entitlements and the alleged conduct of the applicant after he had been verbally advised of his redundancy. The employer appeared to unlawfully attempt to withhold wages and accrued entitlements as part of the ongoing disputation. Therefore, I consider that this factor does provide some assistance to the applicant. However, this factor has to be balanced against the various other factors under consideration.

Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)

[37] There was a paucity of evidence as to the details of any prejudice. No submissions were made on this point. The short time frame of the delay would logically provide little potential for prejudice to arise. Consequently, I have considered that this factor does provide some assistance to the applicant. However, this factor has to be balanced against the various other factors under consideration.

Subsection 394 (3) (e) - The Merits of the Application

[38] This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension of time was granted.

[39] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly there was no evidence provided which established that the unfair dismissal claim was entirely without some potential for success, or that it contained some vital flaw which would render it open to the prospects of summary disposal.

[40] There was unchallenged evidence that the dismissal of the applicant involved a redundancy circumstance that also applied to the dismissals of two other employees. It appeared that the applicant did not take issue with the foundation upon which the redundancies had been determined. Consequently, there would appear to have been potential for there to have been little contest that the dismissal of the applicant was for valid reason.

[41] On any objective and balanced assessment, the unfair dismissal claim presents as an arguable but not particularly strong case. Consequently, the logical consideration of this factor would provide only limited support for the granting of an extension of time.

Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position

[42] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[43] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  1. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[44] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  2 and the following paragraph from that Decision is particularly helpful:

“[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.” 3

Conclusion

[45] In this instance the exercise of the discretion to extend time has been required in respect to a delay of 3 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[46] The reasons for the delay, as can be discerned from the material provided by the applicant, have involved; his state of mental health, his alleged impecuniousness, and the ongoing disputation over alleged unpaid wages and entitlements. Upon careful consideration, these reasons for delay, either separately or in combination, could not represent a sound and acceptable reason for the application to have been made after the 21 day time limit had elapsed. Shortly after being advised of his dismissal, the applicant had made an application for a fee waiver request with the Commission, and he indicated at that time his intention that he “will be filing a case”. There was simply no satisfactory explanation provided as to why the applicant did not file “his case” in accordance with his stated intention contained in his email of 5:00 pm on 16 July 2019.

[47] The other factors under consideration which either assisted the applicant's claim for the Commission to exercise the discretion to extend time, or which were of neutral impact, or which operated against an extension of time, have all been carefully evaluated and balanced so as to provide for a comprehensive conclusion to be drawn having regard for all of the relevant issues.

[48] On balance and having particular regard for the absence of any satisfactory reason for the delay, I have determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case it would not be appropriate, just, or proper for the Commission to exercise the discretion to extend time.

[49] An Order [PR715106] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR715104>

 1   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.