Victor Marco v Restive Tech Pty Ltd
[2023] FWC 2381
•15 SEPTEMBER 2023
| [2023] FWC 2381 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Victor Marco
v
Restive Tech Pty Ltd
(C2023/3674)
| DEPUTY PRESIDENT EASTON | SYDNEY, 15 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – application out of time – not a credible or reasonable explanation for the delay – no exceptional circumstances found – application dismissed.
Mr Victor Marco was dismissed from his employment with Restive Tech Pty Ltd on 27 October 2022. Mr Marco alleges that his dismissal contravened the general protection provisions of the of the Fair Work Act 2009 (“the FW Act”). Section 366(1) of the FW Act requires such applications to be made within 21 days after a dismissal takes effect, in this case being 18 November 2022. Mr Marco did not make his application until 22 June 2023.
Mr Marco seeks an extension of time under s.366(2) to file his application against Restive Tech.
For the reasons that follow, I am satisfied that there were exceptional circumstances or that I should grant Mr Marco an extension of time.
Extension of Time - Consideration
An application to the Commission to deal with a dismissal dispute involving an alleged contravention of the general protection provisions must be made within 21 days after the dismissal took effect or within such further period as the Commission allows (per s.366(1)). The Commission may only allow a further period if it is satisfied that there are exceptional circumstances. Section 366(2) is in the following terms:
“366 Time for application
…
(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.”
Section 394 imposes the same time limit on making an application for an unfair dismissal remedy. Section 394(3) and 366(2) are in almost identical terms. Section 394(3)(b) is one additional factor that is not included in s.366(2): “whether the person first became aware of the dismissal after it had taken effect”. The Commission's approach to s.366(2) and s.394(3) are substantially the same.
The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome. 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.”
The factors listed in s.366(2) and s.394(3), considered separately or in combination, might constitute exceptional circumstances, even if no single factor is exceptional (per Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 (“Stogiannidis”)).
Reason for the delay
I am required to take into account “the reason for the delay” (per s.366(2)(a)). 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: firstly it must be assessed as part of an inquiry into whether exceptional circumstances exist, and then secondly in deciding whether the Commission should exercise its discretion to grant the extension.
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 (per Stogiannidis at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36] (“Yarra Trams”)). 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).
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.
Mr Marco relied on the following reasons for delay:
(a)there was said to be some ambiguity about the terms of his written contract of employment. When he first started in May 2022 Mr Marco signed a written contract that referred to a probation period of six months and also referred to the contract being for three months only. In September 2022 Mr Marco was still employed and he was provided with a further contract that described him as a permanent employee and made reference to a six-month probationary period. Mr Marco said that the apparent ambiguity within the contracts caused delay in him obtaining advice;
(b)Mr Marco sought advice within three days of his dismissal but the agencies from which he sought advice "passed him around" and also told him that his claim had no hope of success because he had not been employed for more than six months (which I take to be a reference to the minimum employment period in the unfair dismissal provisions of the FW Act);
(c)he did not find out until December 2022 that he had been replaced in his position, which caused him to question the legitimacy of his redundancy; and
(d)at the time he was dismissed he was told that he would be replaced by a younger and cheaper worker.
Mr Marco has not provided a credible or reasonable explanation for the whole period of the delay.
I do accept that the alleged ambiguity of the contract is relevant to the delay. Firstly, the terms of the contract are not relevant to the allegation that Restive Tech contravened the general protection provisions. The terms of the contract pertaining to a probationary period might be relevant to the question of whether Mr Marco could lodge an unfair dismissal claim, but even that line of enquiry should quickly have arrived at a dead end because either Mr Marco had worked for the minimum employment period and was eligible to make an unfair dismissal claim or he was not. The precise terms of the contract are not relevant to Mr Marco's capacity to make a general protections application.
Mr Marco's evidence about seeking advice from government agencies was vague. In his written material Mr Marco said:
“I was calling Fair Work Commission & Work Ombudsman since 31st of October 2022 but was told by both I have no hope because "I was working at Restive Tech for under 6 months", they are a small business and I have no chance of winning. Fairwork Commission & Ombudsman were both passing me on for many months, at times I was referred to legal aid who advised me that my case is weak and Ombudsman is best case. This was going on from 31th of October until May, was like a Merry go round without a resolution.”
At the hearing I was flexible with Mr Marco about his evidence. He did not file an actual witness statement, despite being directed to do so and also being referred to the General Protections Benchbook. A number of emails sent by Mr Marco to the Commission were taken to be his evidence even though they contained a mixture of evidence and submissions. Mr Marco was not required for cross-examination. In his oral closing submissions Mr Marco expanded upon his written “evidence” with new and different details and explanations.
From all of Mr Marco's materials and submissions it seems that he sought legal advice within three or four days of his dismissal. The advice he received was that an unfair dismissal claim had no hope of success. After learning in December 2022 that his position had been replaced he sought further advice. He was passed on, he says, by government agencies for many months. At the hearing Mr Marco initially said that in the months between December 2022 and May 2023 he rang for advice two to three times per week, and sometimes waited on hold for more than an hour. When pressed about why he had rung so frequently he suggested that he rang only five to six times per month, but otherwise did not elaborate on the advice he says he sought.
Mr Marco said that it was not until May 2023 that anybody told him about the possibility of a general protections application. He could not identify the precise date in May 2023 that he says he first learned of the general protections regime.
Even assuming that Mr Marco received this advice on the last day of May, he did not make his application to the Commission until 22 June 2023. His explanation for the delay between May and 22 June 2023 was that he was very busy at this time and that he could not attend to it straight away.
Mr Marco led no evidence at all that supported his claim that he had sought advice so frequently between December 2022 and May 2023. I find it implausible that Mr Marco sought advice five to six times each month for six months. Mr Marco had no new information since December 2022 and there were simply not enough dismissal-related matters for him to seek advice about. Moreso, if Mr Marco was so aggrieved about his dismissal that he sought advice five to six times per month for six months, it is highly unlikely that he would take another month to make his application once he found out that he had a cause of action.
I do not need to make any finding about the explanation for the delay from December 2022 to May 2023 because even if there was an acceptable reason for that delay, there is no acceptable reason at all for the delay between May 2023 and 22 June 2023. Mr Marco filed no evidence at all about the delay in this latter period and merely said at final hearing:
“… you know it doesn't mean that just because I get told today that I do it straight away, you know, does-- people are busy I’m very busy too. So I'm not just gonna go straight away at it, I have a lot of things to look after as well.”
The third explanation for the delay was that Mr Marco did not find out until December 2022 that he had been replaced in his position, which caused him to question the legitimacy of his redundancy. This is not a satisfactory explanation at all because Mr Marco’s claim was not filed for a further six months.
The fourth explanation relied upon by Mr Marco was that at the time he was dismissed he was told that he would be replaced by a younger and cheaper worker. This explanation does not assist Mr Marco. Obviously Mr Marco knew this information at the time of his dismissal and he cannot explain how this statement by the employer caused a delay.
In taking into account all of the above, Mr Marco’s explanations for the delay do not point towards the existence of exceptional circumstances. More so, even if I were to find that there were exceptional circumstances, Mr Marco’s explanation for the delay does not support the granting of an extension of time.
The merits of the application
Section 366(2)(d) 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.
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 (see Yarra Trams at [72]).
In this context it is sufficient that an applicant establish that his claim is not without merit (per Thomas Cosgrove v Clarity Interiors[2020] FWCFB 5464 at [33]). The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.
Mr Marco does not appear to have an arguable case under the general protections regime. His application does not identify any particular grounds upon which he says that Restive Tech contravened the general protections provisions. On its face Mr Marco’s application does not go beyond challenging the fairness of the dismissal – which is irrelevant in a general protections claim. No more needs to be said about the merits.
I do not consider the merits in this case point towards a finding that there are exceptional circumstances. I consider the merits of the application to be a neutral consideration.
Other factors
In my view the other factors listed in s.366(2) are neutral considerations. Firstly, Mr Marco took no steps to dispute the dismissal (s.366(2)(b)). Secondly, there is some evidence of prejudice to Restive Tech (s.366(2)(c)). Thirdly, I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Marco and other persons (s.366(2)(e)).
The mandatory factors collectively
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 (Stogiannidis at [38]-[39]).
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
Having regard to the matters I am required to take into account under s 366(2), and all of the matters raised by Mr Marco, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the application must be dismissed. An order giving effect to this decision will be issued separately (PR766274).
DEPUTY PRESIDENT
Appearances:
Mr V Marco, Applicant
Mr S Oliver, for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
August 17.
Printed by authority of the Commonwealth Government Printer
<PR766273>
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