Wynand Maree v OS MCAP Pty Ltd T/A Operations Services

[2022] FWC 1626

[2022] FWC 1626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wynand Maree
v

OS MCAP Pty Ltd T/A Operations Services

(U2022/5417)

COMMISSIONER PLATT ADELAIDE, 28 JUNE 2022

Application for an unfair dismissal remedy – request for an extension of time – application dismissed.

Introduction

1. The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.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]

1. This decision concerns whether I should exercise my discretion to allow Mr Wynand Maree a further period for his unfair dismissal application (Application) to be made against OS MCAP Pty Ltd T/A Operations Services (OS MCAP).

Background

1. Mr Maree lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with OS MCAP which his form F2 Unfair Dismissal Application advised took effect on 7 April 2022.

1. The application was lodged on 16 May 2022 and as such was lodged 18 days out of time.

1. On 23 May 2022, the Applicant filed a submission with the Commission with reasons as to why his application was filed out of time.

1. On 24 May 2022, directions were issued, and the parties were advised that the extension of time issue would be considered at a Hearing, conducted by teleconference, on 22 June 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Acknowledging that Mr Maree had included reasons for his late lodgement in his Form F2 Application and in the submissions filed on 23 May 2022, the Applicant was invited to file any further material addressing the factors in s394(3) by 6 June 2022. The Applicant filed a witness statement on 6 June 2022.

1. On 26 May 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal occurred 7 April 2022 and pressed the jurisdictional objection that the application was lodged out of time. The Respondent did not file any witness evidence in relation to the extension of time issue but filed further written submissions on 13 June 2022.

Hearing

1. A Hearing was conducted by way of teleconference on 22 June 2022. A sound file record of the Hearing was kept. Mr Mitchell Brown represented the Applicant whilst Mr Nick Le Mare represented the Respondent. Both were granted leave, unopposed, on the basis of s.596(2)(a) – complexity and efficiency.

1. Mr Maree gave evidence at the Hearing. His position is summarised as follows:

·  The Applicant was dismissed by the Respondent on 7 April 2022 on the basis of a Fitness for Work assessment that was conducted in August 2021.

·  After receiving his Termination Letter on 7 April 2022, the Applicant sent the Respondent an email challenging his dismissal and requesting a response in relation to certain enquiries. The Respondent indicated they would respond to the Applicant’s enquiries in due course.

·  On 8 April 2022, the Applicant requested confirmation that no final decision (in relation to his employment) would be made until he received a response to his enquiries. The Respondent replied indicating that whilst they would provide answers to the Applicant’s enquiries in due course, the dismissal was effective as of 7 April 2022.

·  On 8 April 2022, the Applicant sent the Respondent an email which contained the following statement:

“I believe you when you say you will respond however, the termination stands and I do not believe sufficient grounds were met to terminate my employment according to the FWA and DDA.

Therefore, I will be requesting an adjudication with the Industrial Commission to rule on this matter in order to avoid BIAS decisions or unfair dismissal.” (emphasis added)

·  In his evidence, the Applicant denied that the reference to FWA was a reference to the Fair Work Commission. The Applicant stated that he randomly cut and pasted from material that he found on the internet including the reference to the “Industrial Commission”.

·   On 27 April 2022, the Applicant sent the following email to both the “Enquiries” email address of the Queensland Civil and Administrative Tribunal (QCAT) and to Legal Aid Queensland:

“Good morning.

Please find attached a completed application along with supporting evidence of unfair/unlawful termination by my employer, BHP Operation Services as requested.

BHP refuse to release any additional and other requested documents that is not protected by the privacy act or an EA.

Still awaiting a response to my email following Tim’s termination letter.

For any further information, please do not hesitate to contact me.”

·  Attached to the email referred to above were a variety of documents including the relevant Termination Letter, Show Cause Letter, correspondence between the Respondent and Applicant, correspondence in relation to the Applicant’s Workers Compensation claim, and an application for Legal Aid completed by the Applicant.

·  The Applicant contends that the email sent on 27 April 2022 represented an attempted unfair dismissal application, and notes that he made this attempted application within the statutory timeframe.

·  On 28 April 2022, the Applicant received the following email response from QCAT:

“Good morning Wynand,

Unfortunately, the registry has been unable to identify a QCAT matter or application from the information you have provided. 

Could you please clarify if you are intending to lodge an application with QCAT?”

·  On 28 April 2022, the Applicant replied to QCAT as detailed below:

“Thank you for your response…

These are my concerns regarding the terminations:

Lack of care by BHP providing unsafe work area causing the incident that left me unfit for any physical duties in the foreseeable future.
Only having qualifications in physical roles yet in the termination letter the offer no redundancies?

BHP health specialist and superintendent advised as early as July 2020 that the outcome will be a non-physical role. BHP and EML arranged and paid for the studies which I completed before the end of 2020 so they can transition me into a suitable role. The production manager, Tim Witney executed the termination letter without attempting to provide suitable roles that is indeed available and that I am qualified for. I cannot use these studies with a different organisation because of my lack of experience in those roles and proven to be too difficult finding any employment due to the condition of my spine.

July 2022, my annual coal bonus incentive is due to be paid to me. Terminated due to BHP’s lack of care, no redundancy, conveniently terminating me before the incentive is due as per my EA, not offering one of more than fifty available positions I am suitable to commence which leaves me in a position with no options or money.

These are the reason’s I believe it to be unfair dismissal as EML also prematurely ended the Workcover claim due to the neurosurgical specialist deeming the proposed suitable duties plan and not appropriate for my restrictions and condition.

It was proposed by EML that I commenced heavy machine operations at week 2, blatantly ignoring instructions, “No physical tasks that could aggravate or reinjure the patient’s spine”.

I am intending to lodge an application with QCAT if I have any grounds to do so?”

·  QCAT responded to the Applicant on 6 May 2022 with an email which stated:

“In regards to your enquiry you would be best seeking legal advice regarding this prior to lodging a claim, I would suggest speaking to Fair Work 1300799675

Please be advised that Client service officers at QCAT are trained to a high standard and have been delegated responsibilities to assist clients with procedural information regarding QCAT matters. Client service officers are not able to provide legal opinions or advice, including identifying the type of dispute you should lodge based on the information you have provided /advising whether QCAT is the correct jurisdiction for your claim.  Further information about the types of matters dealt with by QCAT is available on our website at

You may wish to consider seeking independent legal advice in relation to this matter and I have attached a copy of the QCAT factsheet ‘Where to get legal advice’ for your reference.”

·  On 11 May 2022, the Applicant made various enquiries with legal representatives in the Gold Coast in an attempt to gain legal representation.

·  On 12 May 2022, the Applicant received legal advice which made it clear that the Commission was the correct place to file an unfair dismissal application.

·  On 16 May 2022, the Applicant’s representative filed an unfair dismissal application in the Commission on his behalf.

·  The Applicant maintained that the sole cause of the delay was his mistaken belief that he could file an unfair dismissal application with QCAT. Whilst the Applicant included a medical certificate in his extension of time materials filed with the Commission, at the Hearing the Applicant confirmed that he did not seek to rely on the information contained in the medical certificate as a reason for the delay.

1. The Respondent relied on its submissions and further contended:

·  Whether or not the Applicant’s correspondence with QCAT on 27 April 2022 represented an attempted unfair dismissal application, the Applicant’s lack of knowledge or mistaken belief that he could file an unfair dismissal application with QCAT is not a relevant or acceptable factor when determining whether exceptional circumstance exist such to grant an extension of time.

·  The Applicant put no other reason for the delay forward.

·  The Applicant was aware of his dismissal the day that it took effect.

·  The Applicant took no action to dispute the dismissal until the 20^th day after the dismissal.

Applicable Law

1. 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.”

1. The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]

1. I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

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

1. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] There is no dispute that the Applicant was dismissed on 7 April 2022 and that on that basis the last day to file was 30 April 2022.

1. 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.[6] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[7] the Full Bench explained the correct approach by reference to the following example:

“[31] 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.”

1. 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:[8]

“[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.”

1. The Applicant contends that he was broadly unaware of the applicable legislation and the statutory requirements for challenging an unfair dismissal until he sought legal advice on 12 May 2022.  He contends that his email of 8 April 2022, with its references to the Respondent having insufficient grounds to terminate his employment under the “FWA” and him seeking an “adjudication by the Industrial Commission”, was the product of fortuitous cutting and pasting from the internet. Having had the benefit of hearing the Applicant give evidence, I do not believe the truth of that statement. It is apparent to me that the Applicant had some knowledge of the role of the Commission concerning unfair dismissal matters. That the Applicant may not have been aware of the time limit is not of itself a satisfactory explanation for the delay.

1. Whilst I acknowledge that the Applicant has no legal experience or training, it is difficult to see how the Applicant’s email to QCAT ‘Enquiries’ and Legal Aid Queensland on 27 April 2022 could objectively be viewed as an attempted unfair dismissal application (or indeed any application). Whilst the attachments include a completed application for Legal Aid, the only attachments related to his dismissal with the Respondent appear to be the Termination Letter and the Show Cause Letter. It seems more likely that the Applicant is seeking advice and/or assistance in respect of his dismissal from either Legal Aid Queensland or QCAT rather than truly believing that he had lodged an unfair dismissal application.

1. The Applicant made representations as early as the day after his dismissal that he would pursue the matter with the “Industrial Commission”. The Applicant could not explain how he went from this position on 8 April 2022 to believing that he could file an unfair dismissal application with QCAT by 27 April 2022.

1. The Applicant has not sought to rely on any medical condition to explain the delay.

1. In my view, the Applicant has not provided a credible reason for the period of delay in filing his application which occurred between 30 April and 12 May 2022. This factor weighs against the granting of an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

1. Mr Maree was aware of the dismissal on the date it occurred. Whilst the Applicant contends that he was originally of the belief that the dismissal would not take effect until after the Respondent had provided answers to his various enquiries, the Termination Letter is clear as to its effect. It is objectively clear in the communications received by the Applicant on the 7 April 2022 that his dismissal would take immediate effect.

1. This factor weighs against a finding that there are exceptional circumstances.

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

1. Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[9]

1. The Applicant corresponded with the Respondent to dispute the dismissal on 8 April 2022. I accept that this was action taken to dispute the dismissal.

1. For the reasons stated above, I am not satisfied that Mr Maree’s ‘application’ to QCAT was action taken to contest the dismissal.

1. Taking in account the correspondence of the 8 April 2022, this factor weighs slightly in favour of the granting of an extension of time.

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

1. Prejudice to the employer will weigh against granting an extension of time.[10] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[11]

1. There is no submission that the granting of an extension of time represents prejudice to OS MCAP.  

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

1. In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

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

1. The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[12] considered this criterion and said:

“[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.”

1. I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

1. Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant. The Application is dismissed.

COMMISSIONER

Appearances (by teleconference):

M Brown for the Applicant.
N Le Mare for the Respondent.

Hearing details:

2022.
Adelaide:
June 22.

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

[4] [2011] FWAFB 975

[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

[6] 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]

[7] [2016] FWCFB 349

[8] [2018] FWCFB 3288 at [35]-[45]

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

[10] Ibid

[11] Ibid

[12] [2016] FWCFB 6963

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