| [2019] FWC 4892 [Note: This decision has been quashed - refer to Full Bench decision dated 26 November 2019 [2019] FWCFB 7658] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Cameron Milford
v
Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre
(C2018/4297)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 15 JULY 2019 |
Application to deal with contraventions involving dismissal - application made out of time - consideration of the granting of an extension of time to make application pursuant to s.366(2) - extension of time refused.
[1] Mr Cameron Milford seeks an extension of time pursuant to s.366 of the Fair Work Act 2009 (Act) to make an application for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Act. This decision follows my decision of 19 February 2019 in relation to the date that the dismissal of Mr Milford by Coles Group Supply Chain Pty Ltd (Coles) took effect. 1 In that decision I decided that Mr Milford’s casual employment ended after his last shift on 1 October 2014 and the relevant date for determining the date upon which the 21-day application period commenced is 2 October 2014. This decision should be read alongside the decision of 19 February 2019.
[2] Mr Milford sought permission to appeal my decision however permission to appeal was refused and Mr Milford now seeks an extension of time. 2
[3] Mr Milford’s application was heard on 17 June 2019. Mr Milford was self-represented and Coles was represented by Mr Rauf of counsel by permission of the Commission. Mr Milford made a statement and gave his submissions under oath. He was not required by Coles for cross-examination. On behalf of Coles a statement made by Ms Nicole Dodimead on 28 May 2019 was admitted as evidence. Ms Dodimead was not required for cross-examination.
[4] My task is to consider whether there are exceptional circumstances that enliven the Commission’s discretion under s.366 of the Act to extend the time limit for Mr Milford’s application and, if so, whether I should exercise this discretion in favour of an extension of time.
[5] In coming to a conclusion about whether there are exceptional circumstances I must take into account the five factors contained in s.366(2) of the Act, namely: the reason for the delay; any action taken by Mr Milford to dispute his dismissal; prejudice to Coles (including prejudice caused by the delay); the merits of Mr Milford’s application and fairness as between Mr Milford and any other person or persons on a like position. 3
[6] What constitutes an exceptional circumstance is well established. The Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 dealt with an application for an extension of time by an applicant who, like Mr Milford, made an application pursuant to s.365 of the Act. In that case, the application was made 39 days out of time. Citing the principles earlier distilled by Rares J from decisions of the High Court of Australia, the Full Bench at paragraph 13 said:
[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.
[7] At paragraph 15 the same Full Bench said:
[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. 4
[8] Further, as observed in Lucian Lombardo v Commonwealth of Australia, 5 it is a high hurdle and the longer the delay the more difficult is the hurdle to surmount.
[9] I will address each of the factors specified in subsections 366(2)(a) to (e) in turn in light of these well-established principles.
[10] In my earlier decision I said that Mr Milford’s application was out of time by 1404 days. That calculation erroneously included the 21-day period within which the application could have been made in time. The period that Mr Milford’s application is out of time is actually 1383 days. This does not change my consideration of the reason for the delay. It is still a very long period of delay and in any event I must consider the reason for the delay for the whole period, including the initial 21 days after the date of effect of dismissal. 6
[11] Mr Milford continues to assert that the date his dismissal took effect is 20 July 2018 and that his application is not out of time. Nevertheless he advanced reasons for his application not being made between 2 October 2014 and 20 July 2018.
[12] In summary Mr Milford says that he was not aware that his employment had ended. He was on workers’ compensation and considered he had obligations to participate in rehabilitation. He had not received oral or written communication of his employment ending. He was receiving legal advice for some of the period and his legal advisors did not advise him to make an application. He said that as a delegate for the National Union of Workers it was his understanding that Coles did not consider the practice of failing to offer shifts to an injured worker to be dismissal. He said that it was his understanding that in the event that Coles decided to terminate the employment of an employee they would communicate orally and in writing during a meeting with the employee and that termination of employment would typically occur after the employee had been subject to a counselling and warning process. He said that he had not received such a communication. Mr Milford also advanced his concern about maintaining his workers’ compensation entitlements as a reason that he did not resign his employment or assert a constructive dismissal.
[13] In response to this, Coles says there is no requirement that a termination must be communicated in writing before it can take effect, that Mr Milford’s experience as a union delegate (whilst vague and imprecise) does not establish any practice or requirement upon Coles and his reliance on not having been alerted to the option of making an application by legal advisors does not provide the basis for an exceptional circumstance. Coles says in any event none of these reasons eclipse Mr Milford’s knowledge on 13 June 2016 or, at the latest, on 1 July 2016 that his employment had ended. 7 Coles also says that Mr Milford’s reasons relating to resignation and constructive dismissal are not relevant.
[14] I agree with each of the submissions of Coles.
[15] The chronology of Mr Milford’s circumstances from 2 October 2014 to 20 July 2018 is outlined in the decision of 19 February 2019 and I will not repeat it here. In that decision I concluded that Mr Milford had not received a letter from Coles on or around 31 December 2014 advising him of the end of his employment, notwithstanding it was Coles’ policy to send such a letter to employees who had not worked for 90 days. I accept that Mr Milford was on workers’ compensation for most of this period, notwithstanding some periods when that claim was in dispute. I am satisfied that both of these circumstances could have led Mr Milford to believe that he had not been dismissed and could reasonably explain why he did not make an application.
[16] However I consider that this state of mind could not be maintained by a reasonable person after the receipt of communication on 13 June 2016 and 1 July 2016 for the reasons stated in my earlier decision.
[17] Unfortunately there is nothing out of the ordinary course, unusual, special or uncommon about a casual employee being injured at work and proceeding on workers’ compensation. Similarly it is not uncommon for a casual employee not to be sought for shifts – indeed it is the very nature of casual employment that this occurs. I do not consider that my discretion is enlivened in this circumstance.
[18] It is very unfortunate that Mr Milford did not receive the letter Coles intended him to receive. I regard this as an exceptional circumstance because it was the evidence of Coles in the earlier proceeding that it was the usual practice to send such a letter. As already stated, I consider that Mr Milford became aware, or ought to have become aware, that his employment had ended on either 13 June 2016 or 1 July 2016 at the latest. This circumstance weighs against my exercise of discretion in favour of an extension of time.
[19] Mr Milford had from 13 June 2016, or from 1 July 2016 at the latest, to make an application. He did not do so until 5 August 2018, for no good reason. He resisted knowledge of his employment ending and in this circumstance I consider that the granting of an extension of time is not warranted.
[20] Mr Milford concedes that he did not dispute his dismissal until he made his application on 5 August 2018. He says that in the absence of a dismissal being communicated by Coles there was no opportunity to take action to dispute his dismissal.
[21] Coles says that there is no reasonable explanation as to why Mr Milford did not contact Coles directly after responding to Wesfarmers on 21 June 2016 disputing that his employment had been terminated. They added that even after he wrote to Coles on 21 June 2018 disputing the cessation of his employment Mr Milford waited 45 days before making an application to the Commission.
[22] As already stated I consider that it was an exceptional circumstance for Mr Milford not to receive the letter that ordinarily would be sent by Coles to an employee in his circumstances. Whilst this enlivens the exercise of the Commission’s discretion I regard Mr Milford’s behaviour subsequent to 13 June 2016, or at the latest 1 July 2016, to weigh against the exercise of that discretion in his favour for the reasons given by Coles in their submissions.
[23] Mr Milford says that there is no prejudice to Coles in proceeding with his application. He says that Coles will have access to appropriate records and witnesses. 8
[24] Coles says a long delay will give rise to a presumption of prejudice. 9 In Coles’ submissions at the hearing of 17 June 2019 it said:
“There is evidence which - or people that are no longer there and evidence which has been compromised and the cost and effort involved to now conduct a case related to events which occurred many years ago does give rise to a real prejudice and one which should not easily be overlooked.” 10
[25] As Justice McHugh said in Brisbane South Regional Health Authority v Taylor (footnotes omitted): 11
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation period. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
[26] Clearly there are times that other circumstances outweigh these sources of prejudice but such circumstances are not apparent in this case.
[27] Mr Milford put his head in the sand in June and July of 2016 and more than 2 years elapsed before he made his application. He wilfully resisted the reality of his situation.
[28] I consider that Coles would be prejudiced if the extension of time was granted and this weighs against granting Mr Milford an extension of time.
[29] Mr Milford says that Coles engaged in adverse action against him by excluding him from the workplace, including terminating his employment on 20 July 2018, because he exercised and proposed to exercise his workplace rights in relation to workers’ compensation and the right to accrue and access long service leave.
[30] At the hearing of 17 June 2019 Mr Milford emphasised his entitlement to long service leave as a reason for his dismissal on 20 July 2018. 12
[31] Mr Milford said:
“I haven’t made an application to deal with the dispute that occurred in October 2015, if there was one – there was no dismissal dispute – or an application to deal with the dispute that occurred in June 2016. It is the application to deal with the dispute that occurred on 20 July 2018.” 13
[32] He went on to say:
“Now my concern is that in this instance if the application is dismissed, that would effectively determine my legal right to address the dismissal dispute that arose on 20 July 2018.” 14
[33] Coles disputes these grounds and submitted:
“There are no merits to this claim. The Respondent submits that the Applicant was engaged on a casual basis and his employment came to an end when he was not reengaged for further shifts, not for unlawful reasons as alleged, or at all.” 15
[34] My earlier decision is consistent with the submission that “…the Applicant was engaged on a casual basis and his employment came to an end when he was not reengaged for further shifts.” Neither the hearing of 17 June 2019 nor the hearing that gave rise to the decision of 19 February 2019 debated the question of the reason or reasons for this. In short, the merits of Mr Milford’s substantive application pursuant to s.365 of the Act have not been the subject of submissions and evidence before me. I am not in a position to interrogate the merits of his substantive application and it would not be appropriate for me to make any determination concerning his application save for the decision as to whether to grant an extension of time. 16
[35] I consider this factor as neutral in the consideration of Mr Milford’s application for an extension of time.
[36] Mr Milford submits that a person in a like position would not be expected to file an application in relation to dismissal unless and until the decision to terminate the employment relationship was communicated by the employer. 17
[37] Coles says in cases before the Commission where an application has been filed a matter of days or weeks outside the timeframe, the Commission has denied the shorter extensions sought. 18 Coles says it would not be appropriate to grant an extension of time to Mr Milford when his case is considered in the light of previous cases.19 Coles says a person in a similar position to Mr Milford would have been expected to make an application or take action to dispute their dismissal at a much earlier date than Mr Milford.20
[38] There is nothing before me to suggest that a comparison between Mr Milford and other persons in a similar position would support granting Mr Milford’s application. This is because there is no suggestion that there is a person in a similar position to Mr Milford for me to consider. I do not consider that this factor requires a comparison with a hypothetical person to be made. In this circumstance I regard this factor as irrelevant to the consideration of Mr Milford’s application.
[39] Mr Milford says:
“Now my concern is that in this instance if the application is dismissed, that would effectively determine my legal right to address the dismissal dispute that arose on 20 July 2018. I understand that that's perhaps separate to the extension of time application but I guess the question that arises is, is an extension of time necessarily needed?” 21
[40] This is direct consequence of the time limitation in the Act for an application to be lodged. The Act gives the Commission the power to determine whether to extend this time limit. This is a discretionary decision. If the discretion is exercised against the application it follows that the application continues to be outside the time limit. It follows that the application cannot proceed.
[41] I have found that in respect to the period 2 October 2014 to either 13 June 2016 or 1 July 2016 exceptional circumstances existed that enliven the Commission’s jurisdiction to grant an extension of time. I have decided that Mr Milford’s behaviour in the balance of the period of delay weighs against the exercise of that discretion in his favour. Taking this, and all other factors into account as outlined above, I decline Mr Milford’s application for an extension of time.
DEPUTY PRESIDENT
Appearances:
Mr C Milford, on his own behalf.
Mr B Rauf of counsel assisted by Ms D Fairbairn of Herbert Smith Freehills, for the Respondent.
Hearing details:
2019.
Sydney and Brisbane:
17 June.
Final written submissions:
Applicant, 3 June 2019.
Respondent, 28 May 2019.
Printed by authority of the Commonwealth Government Printer
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3 Fair Work Act 2009 (Cth) s.366(2).
4 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [15].
6 Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349.
7 Transcript of hearing 17 June 2019, PN1604.
8 Transcript of hearing 17 June 2019, PN1494.
9 See, for example, Emma Wild v Escala Partners Ltd [2018] FWC 3146 and Brodie-Hanns v MTC Publishing (1995) 67 IR 298; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
10 Transcript of hearing 17 June 2019, PN1644.
11 (1996) 186 CLR 541 at 552.
12 Transcript of hearing 17 June 2019, PN1494 and PN1721.
13 Transcript of hearing 17 June 2019, PN1709.
14 Transcript of hearing 17 June 2019, PN1714.
15 Respondent’s Outline of Submissions in Reply of 28 May 2019 at 45.
16 Ms Delwyn Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital [2013] FWCFB 6321; Cameron Milford v Coles Supply Chain Pty Ltd [2019] FWCFB 2277 at [21].
17 Applicant’s Submissions in Reply of 3 June 2019 at 6b.
18 Respondent’s Outline of Submissions in Reply of 28 May 2019 at 51.
19 Ibid.
20 Ibid.
21 Transcript of hearing 17 June 2019, PN1714.