Adam McCarthy v Redland Bay Smash Repairs Pty Ltd T/A Mansfield Smash [2020] FWC 2624

1 Fair Work Act 2009 s.365—General protections Adam McCarthy v Redland Bay Smash Repairs Pty Ltd T/A Mansfield Smash (C2020/747) DEPUTY PRESIDENT CROSS SYDNEY, 19 MAY 2020 Application to deal with contraventions involving dismissal. [1] On 10 February 2020, Mr Adam McCarthy (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed he was employed, by Redland Bay Smash Repairs Pty Ltd t/a Mansfield Smash Repairs (“the Respondent”). [2] The Applicant commenced his employment with the Respondent in or around August 2014. His dismissal took effect on 6 December 2019, although there is an issue as to whether he was notified of his dismissal on that date or alternatively on 18 December 2019. [3] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 27 December 2019. If the point of calculation, however, is from 18 December 2019, an application for a remedy should have been lodged by 8 January 2020. The application was therefore lodged outside of the time prescribed and was lodged either 45 or 33 days after the last day on which such an application could have been made. [4] On 6 March 2020, a Directions Hearing was conducted to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”). The Directions were: 1. The Respondent (Redland Bay Smash Repairs Pty Ltd T/A Mansfield Smash) is directed to file with the Fair Work Commission (Commission), and serve on the Applicant (Adam McCarthy), an outline of submissions, witness statements and other documentary material it intends to rely on in support of its jurisdictional objection to this application no later than 4 pm on 16 March 2020. 2. The Applicant is directed to file with the Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material he intends [2020] FWC 2624 DECISION -- 1 of 7 -- [2020] FWC 2624 2 to rely on in response to the Respondent’s jurisdictional objection no later than 4 pm on 30 March 2020. 3. If a party wishes the Commission to consider any reply material, such reply material must be filed at the Commission and served on the other party 4pm on 6 April 2020. 4. The jurisdictional objection to the general protections application filed by the Applicant at the Commission will be determined on the materials filed by the parties per Directions 1 to 3 above. If either party wishes to be heard in person they can and must apply in writing to chambers of Deputy President Cross and their request for an in person hearing will be considered by the Deputy President. [5] In the Directions Hearing the parties were specifically directed to the provisions of s.366(2) of the Act, and they were advised to address the considerations outlined therein where appropriate. [6] The parties complied with each of the directions. The Respondent filed a Submission, a witness statement of Mrs Rhona McDonald, and other materials on 16 March 2020. The Applicants provided submissions in reply on 6 April 2020. [7] Upon review of the parties materials, I formed the view on 14 April 2020, that the matter should be determined by hearing the Parties. I therefore listed the matter for hearing on 28 April 2020. Further, arising from the Applicant’s submission in reply, the existence of telephone communications between the Applicant and the Commission became an issue. As a result, the following directions were issued to the Applicant: (a) By email on 14 April 202, the Applicant was advised as follows by my Chambers: “Mr McCarthy, please provide to Chambers (4 working days prior to the Hearing) evidence of your telephone records from 18/12/2019 - 10/02/2020 that you wish to rely upon.” (b) No telephone records were provided by the Applicant. By email on 27 April 2020, the day before the hearing, the Applicant was advised as follows by my Chambers: “Mr McCarthy, I refer to my below email. If you propose to rely upon telephone records please provide them to Chambers and copy in all parties.” [8] When the matter was called on for hearing on 28 April 2020, while the Respondent appeared, there was no appearance by the Applicant. Further attempts to contact the Applicant were made without success. [9] By email on 29 April 2020, the day before the hearing, the parties were advised as follows by my Chambers: “Yesterday the scheduled hearing did not take place as the Applicant, Mr McCarthy, was not in attendance. The matter will be determined on the papers unless any application is made otherwise and is approved. Mr McCarthy, please provide your telephone records before 4pm -- 2 of 7 -- [2020] FWC 2624 3 tomorrow 30 April 2020. If you fail to do so, the matter will be determined in the absence of these materials.” [10] No telephone records were subsequently received from the Applicant. Consideration [11] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides: “366 Time for application (1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2).” [12] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides: “(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.” [13] It is clear from the structure of s.366(2) of the Act that 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 show exceptional circumstances. [14] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances. (a) Reason for the delay [15] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd1: 1 [2014] FWCFB 2149 stated at [30]. -- 3 of 7 -- [2020] FWC 2624 4 “Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.” [16] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd2: “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.” (Emphasis added) [17] 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 had 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. [18] The first consideration is when the termination occurred, though as will be seen below, even if the termination letter was not received until 18 December 2019, there is no acceptable or credible explanation for the delay. The Applicant was not at work at the time of his dismissal. [19] Mrs McDonald give evidence that she emailed the letter to the Applicant, and provided a copy of that email in her statement. Mrs McDonald also clearly recalls posting the letter to the Applicant on 6 December 2019. The Applicant states in his submission: “On the 18-12-2019 I had received an email from Mansfield Smash Repairs. After reading this email it become very clear to me I had been terminated.” [20] The Applicant apparently only had one email address. Nonetheless, to be effective, a notice of termination must be received by the recipient. As Keely J observed in Transport Workers Union v National Dairies Limited 3; “In my opinion the mere posting of a letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee.” [21] I certainly do not disbelieve Ms McDonald, but for the abundance of caution will proceed on the basis that the first time the Applicant became aware of his termination was 18 December 2019. [22] The Applicant provided further detail regarding the reasons for delay in his submission. That submission was as follows: 2 [2018] FWCFB 901 noted at [39]. 3 (1994) 57 IR 183, at Pp. 184 to 185. -- 4 of 7 -- [2020] FWC 2624 5 “On the 18-12-2019 I had received an email from Mansfield Smash Repairs, After reading this email it become very clear to me I had been terminated. The 1st thing I done was call FWC helpline on 1300 799 675 & Jobwatch on 1800 331 617. Mr Michail Varnis at Jobwatch explained they had a busy week but would try to send me a link for the necessary forms, on the 20-12-2019 I did receive the Forms I needed, Forms F80 & F8 where completed and sent By Fax on the 24-12-2019. After Christmas (06-01-2020)I rang FWC to check on the progress of my application only to be told it hadn’t been received so a search was conducted, I was told somebody would get back to me but nobody ever did. So on the 20th of the first 2020 I called back and the lady by the name of Angie at the Melbourne FWC helpline answered the phone she was very helpful. She done another search for me, Again with no results, Angie then explained that I can send an application by post to GPO box 5713 Brisbane Queensland 4001, I had envelopes and stamps here at home so all I had to do is make the trip next door to the post box and place it in the box. This was done all in the same day the 20th of the first 2020. I then waited for a response and on the 10th of the 2nd 2020 I called up FWC Brisbane again to see how my application was progressing and again I was told it hadn’t been received. I asked the lady I was talking to over the phone what time the office closed and if I could come in and fill out the paperwork and give it to her to send for me, she told me I could so i got in the car and went straight to their office in Brisbane where I filled out the paperwork F8 and F80 the waiver was waived within half an hour for the hardship. This time I knew 100% it was received. I’ve got no doubt that the phone calls can be traced back and checked I know this so why would I make it all up or use this as a mere excuse, a little extravagant for any excuses.” (Original wording/Emphasis added) [23] The above explanation outlined a number of uncharacteristic errors on the part of the Commission and its Registry. Such lack of integrity in the receipt and handling of allegedly filed documents, in a jurisdiction where time of filing is of the essence, was on its face unbelievable. Nonetheless, the Applicant proposed a method of proving at least whether the alleged calls were made. Had the Applicant also attended the hearing of the matter he could have provided further explanation and assistance to the Commission. Unfortunately, he did not, and the matter falls to be determined on the materials filed. [24] The Applicant’s failure to provide any telephone records despite the numerous requests for production of such records allows me to infer that such telephone calls were not made. However, even if such telephone calls were made, the chronology of the Applicant’s alleged contacts with the Commission do not disclose diligent pursuit of his claim, particularly where it seems apparent that the Applicant was aware of the 21 day timeframe. It is unacceptable, and simply unbelievable, that after being told on 6 January 2020, that his Application hadn’t been received but someone would get back to him, the Applicant did nothing for a further 14 days, until 20 January 2020. [25] I do not consider that the Applicant has established any acceptable explanation for the delay. Accordingly, this factor weighs in the Respondent’s favour. (b) Action taken by the person to dispute the dismissal [26] The Applicant certainly took no steps to put the Respondent on notice that he was challenging the dismissal. The first the Respondent knew of any challenge was the filing of -- 5 of 7 -- [2020] FWC 2624 6 the Application 66 days after it considered it had effected the dismissal. Accordingly, this factor weighs in the Respondent’s favour. (c) Prejudice to the employer [27] The Respondent submitted, and I accept, that the employer is a small business. If this matter proceeds there is a likelihood that it will incur significant costs in time and money, and be a financial burden and prejudice on the employer. Accordingly, this factor weighs in the Respondent’s favour. (d) Merits of application [28] This is a general protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason. [29] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd4: “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.” [30] As these matters are contested, I am unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration. (e) Fairness between the person and other persons in a similar position [31] As to fairness between the Applicant and other persons in a similar position, 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 Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. [32] In relation to the issue of fairness between the Applicant and other persons in a similar position, the Respondent submitted: In relation to s 366 (2)(e) “fairness as between the person and other persons in a like position” the Applicant has not provided any evidence or suggestions that there is anything extraordinary about the reason for the delay in his Application. Also, 1. A reasonable person would have made persistent phone calls to check about the status of receipt of the Application. 4 Unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000. Print T2421 stated at [14]. -- 6 of 7 -- [2020] FWC 2624 7 2. The Applicant himself admits to making a call to the Fair Work Commission on 18 December 2019 in his steps to disputing the dismissal at 1.4. 3. Noting that the document provided as an image of the Applicant’s account is in part illegible as to the list of call date/time etc. 4. A phone call made does not explain or justify that the Applicant did not also make calls closer to the 21 days after either 6th or 18th December 2019. 5. If the excuse of ignorance as to how the 21 days is calculated, then the response is that there are copious amounts of free information available to Applicants including the Application Form itself, at the bottom of page 1 point 1 ….”within 21 calendar days…”. [33] It is, unfortunately, not unusual for applicants to, without substance, attribute failures to comply with timeframes to the Commission’s Registry staff or other advisors. Such criticisms are not ordinarily accorded weight without some substance to those complaints. The Applicant, having failed to establish that even the alleged telephone calls were made, will similarly not have his explanations accorded weight. Conclusion As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight, being acceptable reason for delay, action to dispute the dismissal, prejudice to the Respondent and fairness to persons in a similar position, all weighed in the Respondent’s favour. No factors weighed in the Applicant’s favour. [34] I am persuaded therefore that, in the overall balance, there are not exceptional circumstances. The Application for extension of time is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR719489> -- 7 of 7 --