DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Ian Menzies
v
Lindsay Australia Limited T/A Lindsay Brothers Management P/L
(C2017/6462)

Application to deal with a dismissal dispute - whether to extend time for lodging the application.

Introduction

[1] On Wednesday, 22 November 2017 Ian David Menzies (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Respondent to the application is the Lindsay Brothers Management Pty Ltd (t/a Lindsay Australia) (Respondent).

[2] The Application has a long history because it was the subject of:

a) a decision by the Commission (differently constituted) 1, and

b) an appeal 2. The appeal was successful and, on 16 February 2018, the matter was remitted to me.

[3] The factual background to the Application is as follows:

a) On 20 August 2017 the Applicant commenced employment with the Respondent.

b) The Applicant was employed as a line haul driver.

c) On 24 October 2017 the Respondent terminated the Applicant’s employment.

d) On 22 November 2017 the Applicant filed the present application.

[4] Section 365(1)(a) of the Act requires that an application made under s.365 be made “within 21 days after the dismissal took effect”.

[5] 21 days after the dismissal took effect was 14 November 2017.

[6] Consequently, the present application was filed 29 days after the dismissal took effect. As such the application was lodged 8 days outside of the 21 day time limit for making the application.

[7] On 4 December 2017, the Respondent filed an Employer’s Response in which it objected to the application because it was filed out of time.

[8] Because the application was lodged out of time it is necessary for the Commission to first determine whether to allow a further period for the application to be made (i.e. decide whether to grant an extension of time).

[9] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[10] A Full Bench of the Commission has held (in the context of unfair dismissal applications) the following in relation to “exceptional circumstances”: 3

“[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.”

[11] The Applicant bears the onus of demonstrating that exceptional circumstances exist. 4

[12] On 16 February 2018 I issued Directions for the further conduct of the matter including the filing and service of outlines of argument, statements of evidence and any other documents that either party sort to rely upon. The parties complied with those Directions. Consequently, in coming to this decision the Commission, as presently constituted, has, in addition to the evidence received at the hearing on 2 March 2018, had regard to the following:

a) Exhibit “A1” – bundle of submissions and documents filed by the Applicant in the original proceedings by email dated 13 December 2017 (inclusive of IDM1 – IDM4).

b) Exhibit “A2” – Applicant’s Outline of Submissions in Response dated 28 February 2018 (inclusive of IDM1 – IDM9).

c) Exhibit “R1” – Respondent’s Outline of Argument and Employer Response Materials.

[13] At the hearing on 2 March 2018:

a) the Applicant represented himself and made himself available for cross examination.

b) the Respondent was represented by Mr B Jones, the Respondent’s Company Secretary and Legal Counsel. Despite the Directions issued by me the Respondent did not file any statements of evidence. No witnesses were called.

Consideration

The reason for the delay

[14] In his Application the Applicant explained the delay as follows:

“I have been trying to have Lindsay Transport supply my payslips and employment documents to no avail.”

[15] In the Exhibit “A1” the Applicant further explained that:

“From the start of my employment with Lindsay’s early September 2017 I asked for a copy of my employment documents long with pay slips so as I knew my employment conditions and rate of pay.

I first received for the first time a 92 page document posted to my postal address on 25 November 2017 three days after this application was filed.”

He said that the documents provided by the Respondent contained a,

“Copy of Fair Work Information Statement pointing out 21 day time limit.”

….

“The fact is if Lindsay’s had supplied me with my employment documents at the start of my employment in early September I would have known the time constraints of 21 days to file a Complaint.”

“As is obvious they failed at that time then following my many requests Lindsay’s via Ms Strong said she would have my employment documents emailed to me. Again if Lindsay’s had done what they said I would have had my employment documents on 30 October 2017 not 25 November in all approximately three months late.”

[16] In its submissions the Respondent claimed that,

“All of the Respondent’s employees are given a starter pack at the time they commence employment. The starter packs vary depending on the employment position and contain documents such as an application form, reference check form, position description, speed and fatigue management assessment forms, superannuation forms, questionnaires, company policies and pre-employment medical forms. All starter packs include a FW Information Statement.”

“Attached and marked “LT-1” is a copy of the “Lindsay Australia Limited New Starter Paperwork: Linehaul Driver” document. The Starter document is a business record which was in Mr Menzies employment file and show the documents that were issued to him and which he was required to be sent back to the Respondent’s SPC team. SPC stands for safety, people and culture. Mr Menzies received a FW Statement as a part of his starter pack. Mr Menzies sent the FW Information Statement back which other documents. This is why it was in his employment file and why the Respondent sent it back to him after his employment was terminated following his request for payslips and employment documents.”

[17] The Respondent’s explanation is plausible. However, it did not, in accordance with the Directions, file any statements of evidence in support of its submission. It did not call any witnesses or make them available for cross examination. At the hearing Mr Jones said there were witnesses available to be called. However, no statements of evidence had previously been filed on their behalf and it would have been unfair to the Applicant (who did comply with the Directions) to allow them to be called during the hearing without the Applicant being given notice of the same. Consequently, I denied the Respondent the opportunity to call witnesses “on the run”. 5 It would have been procedurally unfair to the Applicant to allow that to occur.

[18] In response the Applicant gave the following evidence,

“The fact is the earliest I received my employment documents and payslips was 25 November 2017 one month after I was dismissed. Despite the fact Lindsay’s Ms Strong said she would email them to me on 30 October 2017.”

“The Employment Documents were received by me for the first time on 25 November 2017 and 28 November 2017 at my postal address ….”

“I was never given documents that the [Respondent’s] Outline … referred to as a “starter pack”.

[19] In circumstances where the Applicant complied with the Directions, filed statements of evidence and made himself available for cross examination (and the Respondent did not) I am left with no choice but to prefer the evidence of the Applicant. For these reasons I find that the Applicant was not provided with the FW Information Statement on the commencement of his employment with the Respondent.

[20] What follows from that finding is that the reason for the delay was that the Applicant was unaware of the 21 day time limit. Before me the Applicant submitted that he did not know 6 about the “draconian time frame.” Further, he said he was prevented from knowing about the 21 day time limit because of the conduct of the Respondent.7 He submitted that “it is exceptional for the Respondent to withhold employment documents and payslips from early September 2017 until late November 2017 a month after they dismissed me.” He also submitted that at the time of the dismissal he was in “mind-numbing turmoil”.8

[21] A Full Bench in Perry v Rio Tinto Shipping Pty Ltd (T/A Rio Tinto Marine observed that,

Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 9

[22] In the present matter the relevant period is between 14 November 2017 (the date by which the Application should have been lodged) and 22 November 2017 (the date it was lodged). This is the period in which the Applicant says he was unaware of the time limit and was in “mind-numbing turmoil.”

[23] It is well recognised that ignorance of the law is not an exceptional circumstance. In answer to this usual position the Applicant submitted that (with reference to Nulty),

“… their Honour’s go on to proffer – ‘unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits.’

The comments made by their honour’s were made in the facts of section 366(1):

(a) Having a time limit of 60 days not 21 as the 2012 No; 174 Amendment change it to.

I respectfully submit the changes to section 366(1)(a) in light of little to no change in the mindset of dismissed employees since amendment 2012 No: 174 is indeed another exceptional circumstance.

When a person such as many is dismissed without proper reasons, they are cast into a mind-numbing turmoil even if they be aware of the impositional time constraints of 21 days – they would be hard pressed to prepare a case in such a short time.”

[1] During the hearing I further explored with the Applicant his awareness of the 21 day time limit. I did this because the evidence he gave in his 28 February 2018 Affidavit was that,

● “The respondent filed to supply any of my employment documents until after the 21 day time limit expired.

● I was from approximately 10 November 2017 up until I attended the Fair Work Commission in Sydney under the impression that I had 60 days to file an Application pursuant to section 266 obtained from the internet by my wife.

● Indeed for approximately 2 weeks after I was dismissed without reason I was not aware that the Fair Work Australia or the Fair Work Commission existed. I had heard of Work Choices some years previous to my knowledge it was abandoned because it was mentioned in the media. I though my action lay within the Federal or State Courts.

● It was only upon a telephone call to the Fair Work Ombudsman that I was made aware of the Fair Work Commission. That is why I attended the Fair Work Commission in Sydney on 17 November 2017. In hindsight I should have taken action in the Federal Court.”

…

“I cannot operate a computer and I had no reason to ask my wife to do so, up to approximately 10 November 2017 I did not know that the FWA 2009 or the FWC existed.”

…

“Until I contacted the Fair Work Ombudsman in early November 2017. I did not know that the Fair Work Commission existed. I did not and do not have any money to seek legal advice and from my knowledge of lawyers they would just steal from me and then sell me out for more money and favours from the big end of town. Exactly like they do to everyone unless one has copious amounts of money to keep paying them.”

…

“During the impositional 21 day time frame I was not aware that the Fair Work Commission existed.”

…

“I completed my application by hand after I attended the Fair Work Commission in William Street Sydney on 17 November 2017 the FWC person told me that I was out of time by some 3 days. I could not file it that day because I did not have any information with me. The 17 November 2017 was a Friday. My wife and I drove back come some 500 km. I then worked all over the weekend and prepared a General Protections Application and signed it on 21 November 2017. I then travelled the 1,000 kilometre round trip to Sydney to file it on 22 November 2017 bearing in mind that because Lindsay’s unjust and unlawful dismissal of myself – without reason we have had to survive on little to no money.”

[2] Before me the Applicant gave further evidence about his knowledge of the Fair Work Act, the Fair Work Commission and the statutory time limit.  10 Arising out of that evidence I make the following findings of fact:

a) On 24 October 2017 the Applicant’s employment was terminated.

b) On 26 October 2017 the Applicant wrote to the Respondent. The email was entitled “Unfair Dismissal”. In the body of the email the Applicant complained about the “unjust dismissal.”

c) On 10 November 2017 the Applicant contacted by telephone the office of the Fair Work Ombudsman (FWO) in Sydney. During this call, he learnt about the existence of the Fair Work Commission and about some general information about General Protections claims. He was not informed of the 21 day time limit.

d) Following his contact with the FWO, the Applicant’s wife undertook some research. She determined that the time limit for filing a General Protections claim was 60 days.

e) On 14 November 2017 the 21 day period expired.

f) On 14 November 2017 the Applicant wrote to the Respondent in respect of his “Unlawful Dismissal”.

g) On 15 November 2017 at 1.48 pm the Applicant sent the letter he wrote the day before.

h) On Friday, 17 November 2017 the Applicant attended the Fair Work Commission in Sydney. There he was told that his General Protections Application was already out of time. He chose not to file an application that day.

i) On 18 and 19 November 2017 the Applicant worked over the weekend.

j) On 21 November 2017 the Applicant completed the Application.

k) On 22 November 2017 the Applicant drove to Sydney and filed the Application.

[3] That is to say,

a) prior to the expiration of the 21 day time limit the Applicant was on notice about the existence of the Fair Work Commission and the General Protections,

b) prior the expiration of the 21 day time limit the Applicant was knowledgeable enough about “unfair dismissal” to write to the Respondent to complain about the same, and

c) although he was told on 17 November 2017 that his application was out of time and he could have filed an application then and there in the Commission he decided not to do so. He then filed the Application 5 days later.

[4] In so far as the reason for the delay was that:

a) the Applicant did not know about the 21 day time limit - that reason is regularly, routinely or normally encountered. Even accepting that the Applicant’s evidence that he was not provided with the FW Information Statement, that does not make the absence of his knowledge any more exceptional. Before me the Applicant said,

“I’ve seen cases where apparently, well, I’ve certainly seen quoted by the respondent’s lawyers that ignorance of the rule is not defence, which I think is pretty harsh, but – because there must be a whole lot of workers out there that are not going to know this, especially if they are not given the Fair Work Information starter pack, as they supposedly call it, which I had never heard of until I saw this latest outline of argument, whatever it is.” 11

Harsh or not, the point made by the Applicant (i.e. there are a whole lot of workers out there that do not know about the 21 day time limit) is correct, but it also counts against him. Ignorance of the time limit is something that is regularly, routinely or normally encountered. It is not exceptional.

b) the Applicant’s wife incorrectly identified that the time limit was 60 days - again, it is all too common for people to incorrectly inform themselves when searching for information on the internet or otherwise undertaking research.

c) the Applicant could not complete the Application on 17 November 2017 (because he did not have all the necessary information) - I do not accept that reason as a reasonable explanation. The Applicant was given the F8 by the Registry staff. He was told it was already late. The essential information the Applicant needed to complete the Form F8 would have been known to him at the time (i.e. the details of the Applicant, who the Respondent was, the date of dismissal, when his employment commenced, the reasons given for dismissal, whether the application was being made within 21 days, whether he had made any other claim, what remedy he was seeking). The Form F8 did not require any special information.

d) the Applicant had to wait until he next attended Sydney on 22 November 2017 to file the Application – the absence of online facilities in remote areas is also not uncommon, and

e) the Applicant’s state of mind at the time of the dismissal, while sympathetic to his plight, it is not out of the ordinary course, unusual, special or uncommon for the Applicant to have felt that way following the termination of his employment. His state of mind does not found an exceptional circumstance.

[5] Finally, the Applicant complained about the change in the legislation that lessened the 60 day time limit to 21 days. However, that is not a matter I can remedy. The legislation is what it is. The Commission has no power to invalidate it or strike it down.

[6] Overall, for the reasons given above, this factor weighs against considering whether to exercise the discretion to allow a further period for the Applicant to lodge his Application.

Any action taken by the person to dispute the dismissal

[7] I find that the Applicant took the following action to dispute the dismissal (that occurred on 24 October 2017):

a) On 26 October 2017 the Applicant wrote to the Respondent in strong terms complaining about the dismissal,

b) On 10 November 2017 he made enquiries with the Fair Work Ombudsman,

c) On 15 November 2017 the Applicant again wrote to the Respondent seeking to negotiate a settlement in relation to the dismissal,

d) On 17 November 2017 he attended at the Fair Work Commission office in Sydney,

e) On 22 November 2017 he filed the Application.

[8] In summary the Applicant has been vigorous in contesting the dismissal. Consequently, this factor weighs in favour of considering whether to exercise the discretion to allow a further period for the Applicant to lodge his Application.

Prejudice to the employer (including prejudice caused by the delay)

[9] The Respondent conceded that there would be little or no prejudice caused by the delay.

[10] I agree that it is difficult to discern any real prejudice to the Respondent beyond the usual prejudice associated with delay. Consequently, this factor is a neutral factor in exercising the discretion to allow a further period for the Applicant to lodge his Application.

The merits of the Application

[11] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file his Application, like in relation to unfair dismissal matters, the Commission “should not embark on a detailed consideration of the substantive case.” 12

[12] The Applicant submitted that there was a sinister reason for the termination associated with him having disputed warnings and asked for pay records and the like. It was said that the adverse action taken against him in the form of the termination of his employment was because he was exercising workplace rights.

[13] The Respondent submitted that was an innocent reason for the termination that occurred during the statutory qualifying period relating to repeated speed safety breaches (denied by the Applicant). I note that there was no evidence tendered by the Respondent about the alleged breaches.

[14] In considering whether to grant an extension of time the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Court during the substantive hearing.

[15] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance. There is a reverse onus in matters such as this and the Respondent would have to establish that it did not terminate the Applicant’s employment because of a prohibited reason.

[16] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his Application.

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

[17] This factor does not appear to be relevant in the circumstances as there are no persons in a similar position. The parties agreed with the same. 13

Conclusion

[18] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[19] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 14

[20] Suffice to say it is not enough for the Applicant to establish an acceptable explanation for delay, without also establishing that the reason is an exceptional circumstance or part of a number of factors, which when viewed jointly, represents exceptional circumstances.

[21] Having considered:

a) all of the circumstances related to the Application,

b) the evidence filed, and

c) the submissions made by the parties,

for the reasons above, in the exercise of my discretion, I am not satisfied that exceptional circumstances as envisaged by s.366(2) of the Act arise in this case. I am not persuaded to exercise the discretion to allow a further period within which to lodge the Application.

[22] The period for the Applicant to lodge his Application is not extended. The Application is dismissed.

[23] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr I Menzies for the Applicant.

Mr B Jones for the Respondent.

Hearing details:

Sydney with VC to Brisbane

4.30 PM, Friday, 2 March 2018

Printed by authority of the Commonwealth Government Printer

<PR601599>

 1   [2017] FWC 6996

 2   [2018] FWCFB 1037

 3   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 4   Wemyss v Mission Australia Employment Services [2010] FWA 1798.

 5   Transcript PN64.

 6   Transcript PN151.

 7   Transcript PN151.

 8   Transcript PN153.

 9   [2016] FWCFB 6963, [23], citing Shaw v ANZ Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33].

 10   Transcript PN94 – 130.

 11   Transcript PN160.

 12   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 13   Transcript PN171 – 173.

 14   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.