Alexander Mirow v Suez Pty Ltd [2020] FWC 1660

1 Fair Work Act 2009 s.365—General protections Alexander Mirow v Suez Pty Ltd (C2020/476) DEPUTY PRESIDENT BOYCE SYDNEY, 3APRIL 2020 Application to deal with contraventions involving dismissal — request for extension of time to file application — each individual reason for delay is unexceptional — totality of reasons for delay are unexceptional — where applicant initially pursued an unfair dismissal claim — where applicant discontinued unfair dismissal claim after conciliation of that claim had occurred, and after unfair dismissal claim had been programmed for arbitration — no jurisdictional objection to unfair dismissal claim — where applicant also pursued an unlawful dismissal application but discontinued same — where applicant then filed a general protections claim 75 days out of time - employer visited by prejudice in having to engage with and defend multiple claims in respect of the same dismissal — where there are no exceptional circumstances to enliven discretion to grant extension of time — application dismissed. [1] On 28 January 2020, Mr Alexander Mirow (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by emailing a Form F8 to the Commission’s Registry in Sydney (GP Application). The Applicant alleges that his employment with Suez Pty Ltd (Respondent) was terminated (by the Respondent) on 24 October 2019 contrary to Part 3-1 of the Act. [2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow.1 The 21 day period prescribed in s.366(1)(a) of the Act does not include the day on which the dismissal took effect. [3] The Applicant acknowledges that he lodged his GP Application 75 days outside of the statutory time limit. To be within time, the Applicant should have lodged his GP Application on or before 14 November 2019. [4] On 25 March 2020, I convened a hearing (by telephone) to determine whether to allow the Applicant an additional period within which to lodge his GP Application. I have determined that that there are no exceptional circumstances that would enliven my discretion to grant the Applicant an extension of time to file his GP Application. Accordingly, the application must be dismissed. My reasons for this decision follow. Matters to be taken into account [2020] FWC 1660 DECISION -- 1 of 10 -- [2020] FWC 1660 2 [5] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads: “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.” [6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.2 A decision whether to extend time under s.366(2) of the Act involves the exercise of a discretion.3 [7] Section 366(2) of the Act makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. In Nulty v Blue Star Group Pty Ltd (Nulty),4 the meaning of “exceptional circumstances” was addressed by the Full Bench of Fair Work Australia 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. [14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”. (emphasis added) -- 2 of 10 -- [2020] FWC 1660 3 [8] The principles of Nulty have been cited with approval by the Full Bench of this Commission in Tamu v Australia for UNHCR.5 [12] Generally speaking, the assessment of whether exceptional circumstances exist requires consideration of all of the relevant circumstances, because even though no individual factor may be exceptional, in combination, the circumstances may be such as to be reasonably regarded as exceptional.6 [9] I turn to address the particular matters to which regard must be had. Reason for the delay [10] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight. [11] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired, and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.7 [12] The Applicant submitted that there are several reasons for delay. I address each of the Applicant’s reasons in turn. Representative error [13] The Applicant submits that one of the reasons for his delay in filing his GP Application was because of representative error. [14] It is not disputed that the Applicant’s date of dismissal was 24 October 2019. Twenty- one days after this date is 14 November 2019. [15] The Applicant initially filed a claim for unfair dismissal on 14 November 2019 (UD Claim). The Applicant was represented by the Transport Workers’ Union of Australia (TWU) in respect of the UD Claim. The UD Claim was lodged within the statutory time limit, and there is no suggestion that there were any jurisdictional barriers to the UD Claim being made or heard. Indeed, the Respondent confirmed during the hearing that they were not aware of any jurisdictional issues concerning the UD Claim, and that the Respondent had made no jurisdictional objections in respect of the UD Claim. [16] At 1.26pm AEDT on 14 November 2019, the Applicant emailed the TWU asking them to lodge two further claims on his behalf (i.e. in addition to the UD Claim). Those additional claims were in respect of a general protections dismissal application, and an unlawful termination application. It appears that the TWU did not respond to this email. However, given the operation of Division 3 (Preventing Multiple Actions) of Part 6-1 of the -- 3 of 10 -- [2020] FWC 1660 4 Act, there was no basis (in any event) upon which the Applicant was able to proceed in respect of two or more claims in respect of his dismissal. [17] On 28 November 2019, the Applicant lodged a Form F9 with the Commission, being a claim in respect of unlawful termination. The TWU did not represent the Applicant in this claim. On 13 December 2019, the Applicant discontinued his unlawful termination claim. The Applicant stated that he discontinued this claim because he had received some “minor legal advice” that he would be better to proceed with the listed conciliation in respect of his UD Claim. [18] The UD Claim was conciliated before the Commission on 16 December 2019. The UD Claim did not settle at this conciliation. The parties were subsequently notified by email that the unfair dismissal application was to be programmed for arbitration. [19] On 19 December 2019, the Applicant emailed the TWU, confirming that he wholly rejected the Respondent’s settlement offer in respect of the UD claim, and raised concerns with the TWU as to why they had filed the UD Claim, and not a general protections dismissal claim on his behalf. The Applicant received an out-of-office email auto-reply to his email, advising that the TWU offices were closed for the Christmas / New Year period, and would be re-opening on 6 January 2020. [20] On 7 January 2020, on his own initiative, the Applicant discontinued his UD Claim. When I questioned the Applicant during the hearing as to why he discontinued his UD Claim, he was unable to provide any reason/s for same, and stated that he had not sought any advice (legal or otherwise) in discontinuing his UD Claim. The inference I draw from the documentary evidence tendered by the Applicant at the hearing, namely two unanswered emails from him to the TWU (on 19 December 2019 and 7 January 2020), is that the Applicant had become disgruntled with the TWU’s representation of him, and was otherwise determined to pursue a general protections dismissal claim (as he considered that such an application was the correct or ‘better’ claim to pursue). [21] On 28 January 2020 (nearly 21 days after the Applicant discontinued his UD Claim), the Applicant lodged his GP Application with the Commission. [22] In short, the Applicant asserts that the lodging and discontinuance of his UD Claim, and the lodging and discontinuance of his unlawful termination claim, are partly due to representative error by the TWU. Further, the Applicant also asserts that the delay in lodging his GP Application is also attributable to the TWU, in that he had requested that the TWU file a general protections dismissal application on 14 November 2019, but the TWU did not do so, and neither did they reply to his request for this to occur. [23] Reliance on representative error as a reason for the late lodgement of an application was dealt with extensively in Clark v Ringwood Private Hospital (Clark).8 In Davidson v Aboriginal Islander Child Care Agency,9 a subsequent Full Bench of the Australian Industrial Relations Commission summarised the general propositions in Clark, as follows: “In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay: -- 4 of 10 -- [2020] FWC 1660 5 (i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged. (ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant. (iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged. (iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered”. (emphasis added) [24] The principles espoused in Clark have been considered and applied in various decisions of this Commission.10 I equally rely upon those principles in this decision. [25] I do not accept there has been any representative error by the TWU. [26] The pursuit of multiple claims in respect of the Applicant’s dismissal was a decision made by the Applicant alone. [27] The TWU lodged the UD Claim on the Applicant’s behalf within the statutory time limit. There were no jurisdictional issues in respect of that claim. The Applicant himself chose to discontinue his UD Claim (i.e. the TWU did not advise him to do so). [28] The Act prevents applicants conducting multiple claims in respect of a dismissal. Even if the Applicant did or had instructed the TWU to lodge multiple claims in respect of his dismissal, there was no correct legal basis for the TWU to do so. [29] It is apparent that the Applicant’s unlawful termination claim had no jurisdictional foundation to support it at the time it was lodged. It was a claim lodged by the Applicant alone. The Applicant obtained no advice from the TWU in respect of his unlawful termination claim. He obtained no advice from the TWU to discontinue his unlawful termination claim. [30] The decision by the Applicant to lodge his GP Application was a decision made by him alone. He obtained no advice from the TWU in respect of the GP Application. He has -- 5 of 10 -- [2020] FWC 1660 6 obtained no advice from the TWU to continue his GP Application. He has obtained no advice from the TWU in respect of his request for an extension of time to file his GP Application. [31] In view of the foregoing, no issue of representative error arises for determination in this matter. There is no evidence that the TWU acted or represented the Applicant poorly or wrongly. There is no evidence that the TWU misled the Applicant, and there is no evidence that the TWU made any misrepresentation/s to the Applicant in respect of any claim concerning his dismissal. To be clear, I reject the Applicant’s assertion that his GP Application was visited upon by any representative error, or that any representative error contributed (in any way) to the lodgement (by the Applicant on 28 January 2020) of his GP Application out-of-time. Impaired cognitive ability resulting from a medical condition [32] The Applicant submits that he suffered from an anxiety and depressive disorder following the termination of his employment, and that this disorder contributed to the delay. [33] There are numerous decisions of this Commission that do not take the mere existence of mental health issues as a reason that lends to the existence of exceptional circumstances.11 In some cases, the severity of the mental health condition is beyond the degree otherwise encountered by those that suffer the same condition. Further, that extraordinary severity might account for the entire period of a delay.12 Put another way, it is not the existence of the mental health condition that has been found to lean toward an “unusual” or “uncommon” circumstance. It is a feature of that mental illness (such as the severity of the symptoms) that distinguishes an applicant’s experience of that illness as being of a special and distinct class. [34] The Applicant conceded during the hearing that he has not provided evidence to support a proper finding on either the existence, or the severity, of his alleged disorder. The Applicant says that he was unable to obtain a medical report to substantiate his assertions because he could not afford to obtain one. Even if that may be true, I cannot make a finding on the absence of evidence (regardless of the cause of that absence). [35] Based upon the (lack of) evidence before me, I reject the Applicant’s assertion that his 75 day delay in filing his GP Application was due (in part or in whole) to a medical condition. Closure/limited access to the Commission’s offices during late December 2019 / early January 2020 [36] The Applicant submitted that another reason for the delay was that he had limited access to the Commission’s offices between 24 December 2019 and 2 January 2020 (given the Commission’s reduced service provision over that period). Further, the Applicant said that he could not seek independent legal advice, as most firms and/or agencies were closed during the same period, or were charging a premium fee over the Christmas / New Year period. [37] I reject this reason as leaning toward a finding of exceptionality. The Applicant had every opportunity to contact the Commission Registry during this period and clarify a method of lodgement, and/or file his GP Application electronically. I also reject the assertion that it was “impossible” for him to seek advice from legal practitioners during this period. -- 6 of 10 -- [2020] FWC 1660 7 [38] The limited availability of resources during the Christmas / New Year holiday period is not exceptional. It is a matter ordinarily and commonly encountered during this period by all applicants. It does not lean towards a finding of exceptional circumstances. Further, it does not in any way explain the delay occurring after 2 January 2020. Court attendances [39] The Applicant says that his GP Application was delayed because he had to attend court hearings in the Federal Family Court, and the Local Court (for matters unrelated to his GP Application). [40] I reject this reason as leaning toward a finding of exceptionality. The Applicant’s purported requirement to attend other court proceedings only identifies four separate days of attendance between 14 November 2019 and 28 January 2020. They do not support a 75 day delay in the filing of his GP Application. [41] In any event, the pressures and responsibilities that the Applicant has no doubt encountered whilst tending to those other court proceedings would be no greater than that ordinarily encountered. If the Applicant wished to pursue a claim against his former employer, whilst concurrently dealing with those other court proceedings, there is no basis on the evidence before me as to why the Applicant was unable to “walk and chew gum at the same time”. Reasons considered collectively [42] Although the Applicant did not expressly submit as such, I take into account that regard must be had to not only each individual reason for delay, but the reasons combined. In making this combined assessment, I do not consider that the reasons given by the Applicant collectively weigh in favour of any finding as to exceptional circumstances. I say so having had regard to the fact that I have made no finding of representative error, no finding of a mental health issue contributing to delay, and no finding that the remaining reasons properly explain the filing delay between 14 November 2019 and 28 January 2020 of the GP Application. Action taken by the Applicant to dispute the dismissal [43] As stated above, the Applicant did file his UD Claim within 21 days of his dismissal. That claim was being progressed before the Commission. In these circumstances, the Respondent was well aware that the Applicant disputed his dismissal (and the reasons for that dismissal). However, the Respondent was not on notice that the Applicant proposed to bring a general protections dismissal application over the same dismissal. I therefore consider these circumstances to be a neutral consideration in this matter. Prejudice to the employer [44] The period of delay (i.e. 75 days) is substantial. Further, the Applicant has brought two other claims in respect of his dismissal, that he has subsequently discontinued. The UD Claim was subject to a conciliation, and had been programmed for arbitration (prior to it being discontinued). I take notice of the fact that the Respondent has already had to engage with the UD Claim before the Commission, and expended time and resources in doing so. -- 7 of 10 -- [2020] FWC 1660 8 This readily demonstrates that there would be material prejudice visited upon the Respondent if the Applicant’s request for an extension of time were to be granted. As such, I find that these circumstances weigh against a finding of exceptional circumstances. Merits of the application [45] The principles stated Kyvelos v Champion Socks Pty Ltd, 13 albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here: “In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.14 [46] The thrust of the Applicant’s claim is that the Respondent’s decision to terminate his employment was as a result of complaints or inquiries that he had made to the Respondent during his employment in relation to his leave entitlements and/or alleged underpaid wages. [47] I note that the Applicant’s arguments are not totally absent merit. That said, I am not in a position to make any formal findings as to the merits of his GP Application given the readily apparent conflicting factual evidence between the parties. I therefore consider the merits of the GP Application to be a neutral consideration. [48] In passing, I note that the Applicant also alleges in his GP Application (via the ticking of boxes) contraventions as to other workplace rights, coercion, misrepresentation, discrimination, and temporary absence. Apart from vague statements in the GP Application purportedly supporting these contraventions, I am unable to discern from the facts stated any identifiable cause of action at law as to these alleged contraventions. That said, they do not alter my finding that the merits of the GP Application are a neutral consideration. Fairness as between the Applicant and other persons in a like position [49] No submissions were made on this issue, nor was any evidence tendered in respect of same. I find this to be a neutral consideration. Conclusion -- 8 of 10 -- [2020] FWC 1660 9 [50] In view of my reasons above, I find that there are no exceptional circumstances to warrant the Applicant being granted an extension of time to file his GP Application. As such, the application is to be dismissed. An order to this effect will follow in due course. DEPUTY PRESIDENT Appearances: The Applicant appeared for himself. Ms Tarin Davis appeared on behalf of the Respondent. Hearing details: A hearing was held in Sydney (by telephone) on 25 March 2020. Printed by authority of the Commonwealth Government Printer <PR717864> 1 Fair Work Act 2009, s.366. 2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. 3 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316. 4 [2011] FWAFB 975. 5 [2019] FWCFB 2384 at [16] – [20]. 6 Misconi v Negri Contractors (Vic) Pty Ltd [2019] FWCFB 654 (at [13]). See also: Griffiths v The Queen (1989) 167 CLR 372 at 379; 87 ALR 392; 41 A Crim R 163; 63 ALJR 585; [1989] HCA 39 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J). 7 See: Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963 at [23]. 8 (1997) 74 IR 413. 9 (1998) 105 IR 1. 10 See: Officeworks Ltd v Parker [2014] FWCFB 5779 at [14]. See also: Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963; Lay v Bar's Leaks (Australia) Pty Ltd [2016] FWCFB 2647. 11 c.f. Underwood v Terra Firma Pty Ltd t [2015] FWC 1387 at [12] (Sams DP), referring to Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 (Watson -- 9 of 10 -- [2020] FWC 1660 10 VP and Smith DP, Lewin C in dissent); Byfield v St Vincent De Paul NT [2020] FWC 524 at [22] (Cross DP); Burke v Techtronic Industries Australia Pty Ltd [2016] FWC 7035 at [13] to [14] (Dean DP). 12 Scott v Steritech Pty Ltd [2019] FWC 2970 at [97] (Sams DP). 13 (1995) 67 IR 298. 14 Ibid at 299 to 300. -- 10 of 10 --