Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773 (14 June 2016) [2016] FWC 3773 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Ivan Whittle v Redi Milk Australia Pty Ltd (U2016/6767) COMMISSIONER RYAN MELBOURNE, 14 JUNE 2016 Application for relief from unfair dismissal - extension of time refused – application dismissed. [1] Mr Whittle lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal. The application was lodged by Express Post and was received by the Fair Work Commission on 6 May 2016. [2] Mr Whittle was dismissed from his employment on 11 March 2016 and says that he was not notified of his dismissal until he received his termination letter in the mail on or around 17 March 2016. For the purpose of s.394(2) I am prepared to accept that Mr Whittle’s dismissal took effect on 17 March 2016. [3] Mr Whittle had until midnight on 7 April 2016 to lodge an unfair dismissal application. Mr Whittle’s unfair dismissal application was filed outside the 21 day time limit provided for in the Act. [4] The Respondent opposes the grant of an extension of time. [5] The Respondent’s representative, Mr Barkatsas of the Victorian Chamber of Commerce and Industry, requested the determination of an extension of time occur on the papers. Mr Whittle consented to that course and was given a further opportunity to file any response submissions. Legislation [6] Section 394(3) permits the Fair Work Commission to extend the 21 day time period in in the Act subject to the Commission being satisfied that there are exceptional circumstances taking into account each of the relevant matters enumerated in s.394(3). “394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (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.” [7] Mr Whittle’s submissions advanced in support of being granted an extension of time appear to address two of the criterion: the reason for the delay and whether the person first became aware of the dismissal after it had taken effect. His submissions can be summarised as: ● at the time of dismissal he was under medical certificates and/or was on WorkCover resulting from an injury sustained at work; ● he was not notified of his dismissal until several days after he was terminated. Section 394(3)(a) - The reason for the delay [8] The time period I must take into consideration when assessing the reason for delay is the period between the expiration of the 21 day time period and the actual date of lodgement of the application, which period is from 8 April 2016 to 6 May 2016. [9] Mr Whittle provided several medical certificates to the Commission in support of his reason for delay. Significantly, he was certified by a doctor to have capacity for suitable employment from 31 March 2016. [10] The Respondent’s submissions address this criterion as follows: “ 12. ….the medical certificates provided to the Commission fall well short of establishing anything out of the ordinary course, or unusual, or special, or uncommon. ….. Nor does it suggest incapacity to take any action in respect of his dismissal in the 35 days between the dismissal and the lodgement. … 17. In circumstances where a doctor – as early as 31 March 2016 - has certified the Applicant has the physical capacity suitable for employment, subject to a restriction of not lifting weight from the left hand/shoulder of greater than 1kg, and without any mental health function issues, it is simply unsustainable that he lacked the capacity to lodge his unfair dismissal claim during this time. … 19. Even if the medical certificates are accepted as evidence of total incapacity (which is denied), there is no evidence of incapacity for the entire period of the delay . There is no evidence of total incapacity after the expiration of the 21 day period (1 April 2016).” [11] I accept the submissions of the Respondent and find that Mr Whittle has not proven that his delay in lodging his application was caused by him being incapacitated to an extent which prevented him from completing and lodging an unfair dismissal application. Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect [12] Mr Whittle’s second submission is that he was not notified of his dismissal until several days after the termination took effect, when he received by registered mail the termination letter on or around 17 March 2016. [13] As Mr Whittle first became aware of his dismissal on the day that the dismissal took effect, ie 17 March 2016, this criterion does not weigh in favour of finding that exceptional circumstances exist. [14] I accept the Respondent’s submissions and find that this criterion does not weigh in favour of finding that exceptional circumstances exist. Section 394(3)(c) – Any action taken by the person to dispute the dismissal [15] There is nothing before the Commission that suggests that Mr Whittle took any action to dispute his dismissal and therefore this criterion does not weigh in favour of of finding that exceptional circumstances exist. Section 394(3)(d) – Prejudice to the employer (including prejudice caused by the delay) [16] The Respondent submitted that a delay of 35 days as occurred in this matter is a long delay and that such a delay gives rise to a general presumption of prejudice 1 . I find that there is prejudice to the Respondent due to the length of the delay in this matter which does not support an extension of time. Section 394(3)(e) - The merits of the application [17] An application for an extension of time is not the occasion for the Commission to consider the merits of the case. 2 A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 3 [18] Both Mr Whittle and the Respondent have made general submissions as to the merits of the substantive application. The Respondent submitted: “31. ….the Applicant was dismissed after abandoning his employment without reasonable excuse and failing to communicate with the Respondent for numerous days regarding his whereabouts or his intentions to return to work. His last day present at the workplace was 2 March 2016. The Respondent sent him a letter to his address on file on 9 March 2016 requesting he contact the Respondent immediately by 11 March 2016 (as there had been no contact since 2 March 2016). When the Applicant failed to make contact, the Respondent considered he had abandoned employment as of 11 March 2016 and duly sent the letter to his address on file. 32. The Respondent first heard from the Applicant again on 24 March 2016, when he rang the office querying his pay. The Respondent also understands the Applicant changed his contact number four times from 2 March 2016 onwards.” [19] Mr Whittle submitted that he provided medical certificates to the Applicant by way of text messages which accounted for his absence from work and that at the time that the Respondent alleges it was trying to contact him that he was experiencing a very nasty separation from his partner and was forced to change his mobile number approximately 5 times in one week. [20] It is obvious that the proposition that Mr Whittle abandoned his employment is a contested matter and that further evidence needs to be put from both sides before any findings could be made. [21] Accordingly, as I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested, I find this criterion to be neutral. Section 394(3) (f) fairness as between the person and other persons in a similar position. [22] The Respondent’s submissions address this criterion as follows: “36. In considering an application for an extension of time for a s.365 application in Dain v Bradley & Grant17 (“Dain”), Deputy President Booth noted it is important to appreciate the purpose of limitation periods such as that contained in the Act and it is referred to the decision of McHugh J in Brisbane South Regional Health Authority v Taylor where His Honour stated: “The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.” 37 . The Applicant has not met his positive burden in demonstrating that his case is a justifiable exception to the rule by failing to provide a reason which demonstrates his reason for late lodgement was “unusual, or special, or uncommon”. 38 . In Morphett v Pearcedale Egg Farm ,Deputy President Gostencnik considered this criterion and stated: “…cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.” 39 . Allowing the Application to proceed would not be fair to the Respondent and would be unfair to those in a similar position to the Applicant whose applications have (rightly) been dismissed due to a lack of exceptional circumstances.” [citations omitted] [23] The Respondent’s contentions miss the point of s.394(3)(a). [24] To the extent that the Respondent relies on the decision of Booth DP in Dain v Bradley the Respondent has misquoted the decision. The extract relied on by the Respondent had nothing to do with considering fairness as between the applicant and other persons in similar position. [25] What Booth DP said on that issue was: “e) fairness as between the person and other persons in a like position [56] A comparison between Mr Dain and other persons is not relevant in this matter. It has not been submitted by either party that there are other persons in a like position to Mr Dain. Comparative fairness was addressed in Ballarat Truck Centre Pty Ltd v Melissa Kerr where the Full Bench said: ‘It appears to be clear that s.366(2)(e) of the Act should be limited to a comparison of persons who have also had their employment terminated and are thus capable of lodging a s.365 application. A time limit for the lodgement of an application under Part 3 - 1 of the Act is only provided for with respect to s.365 applications. The Act imposes no time constraints on other applications available under Part 3-1. It follows that the consideration stipulated in s.366(2)(e) of the Act requires a comparison between people who are capable of bringing a s.365 application. Further, as Mr Follett submitted, if s.366(2)(e) allowed for a comparison to a person who had not been dismissed, then, as the Act imposes no time constraints on other applications under Part 3-1, that comparison would always produce comparative unfairness and it could hardly be seen to be indicative of whether there are exceptional circumstances for which a further period of time could be granted.’ [57] There is no contribution one way or the other to the exercise of my discretion in his favour from these circumstances.” [26] To the extent that the Respondent relies on the decision of Gostencnik in Morphett v Pearcedale Egg Farm the Respondent pays insufficient attention to the fact that the decision was given ex tempore. What Gostencnik DP had to say about s.394(3)(f) was as follows: “[29] Turning to the question of fairness as 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 an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. [30] Neither party highlighted any particular matter which would be relevant nor am I aware of any particular matter currently before the Commission, or cases decided previously by the Commission which might have a bearing on this consideration. I therefore consider that this consideration is a neutral one in this case.” [27] The decisions of each of Booth DP and Gostencnik DP need to be considered in light of the purpose of s.394(3)(f). [28] The Explanatory Memorandum to the Fair Work Act 2009 says of s.394(3): “1572. Subclause 394(2) provides that an application must be made within seven days of a dismissal taking effect. However, FWA has discretion to extend the timeframe for making an unfair dismissal application if it is satisfied that there are exceptional circumstances. 1573. This discretion must be exercised in accordance with subclause 394(3), which provides an exhaustive list of the factors FWA must take into account when determining if there are exceptional circumstances. These factors are based on the principles set down by the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. ” [29] In Brodie-Hanns v MTV Publishing Ltd ( Brodie-Hanns) Marshall J said: “Principles for extension of time The relevant principles which should govern the Court’s discretion to extend the time within which an application under s 170EA of the Act may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australia v National Dairies Ltd (No 2) (1994) 57 IR 186 and Beazley J in Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412. In each case the Court applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter. Briefly stated the principles are: 1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.” [30] As Marshall J made very clear the principles weren’t his, they were a restatement of early decisions and in particular they were based on the tests referred to by Wilcox J in Hunter Valley Developmnets v Cohen . In that case Wilcox J introduced the principles with the following comment: “17. Section 11 of the Administrative Decisions (Judicial Review) Act does not set out any criteria by reference to which the Court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion: [31] In subsequent paragraphs Wilcox J enumerated the principles including: “23. (f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at pp 534-535.” [32] In turn the decision of Sheppard J in Wedesweiller and others v Cole and others 4 dealt very specifically with an extension of time application which had to consider fairness as between the applicants and other persons otherwise in a like position. In Wedesweiller some 153 applicants filed applications in the Court nearly a year out of time. The 153 applicants were substantially in the same position as another 190 applicants who had filed their applications to the Court in time. Sheppard J said: “Ordinarily one might regard an application for extension of time made almost twelve months after the expiry of the prescribed time as being too late, particularly where the prescribed period is as short as 28 days. That is the view I think I would have had in relation to these applications were it not for the fact that there are pending for hearing in the Court's list approximately 190 similar applications all arising out of similar incidents to those complained of by these applicants. It is that circumstance which, according to the submission of senior counsel, makes this case different from others. Furthermore, as a matter of fairness amongst employees in similar situations it is only right, in his submission, that these applicants be allowed to proceed. He further submitted that no real prejudice was shown by the respondents, not forgetting the difficulties they may have in obtaining evidence as mentioned by Mr. Cassin. Certainly there was not here any administrative reason or reason not associated with the direct interests of the parties which ought to dissuade me from granting the extension which is sought. Senior counsel for the respondents submitted that the period of 11 months was far too long. He said that there seemed no reason why there could not have been at least some general and earlier warning from the applicants' solicitors that these applications were in train. So far as they were concerned the matter was past and was better left where it was. He also drew attention to the fact that there was no direct evidence from any applicant explaining the delay or deposing to facts from which one could make a judgment as to the possibility or probability of a successful challenge to the decisions which are sought to be reviewed. I have weighed these various considerations with some anxiety. I confess to not having found the matter easy of resolution but in all the circumstances I have reached the conclusion that on balance the applications should be granted.” [33] The Commissions own Unfair Dismissals Benchbook says of s.394(3)(f): “Fairness as between the person and other persons in a similar position This consideration may relate to fairness in matters of a similar kind that: • are currently before the Commission, or • have been decided in the past.” [34] In support of the proposition that s.394(3)(f) may relate to matters of similar kind that have been decided in the past the Benchbook cites the decision of Richards SDP in Wilson v Woolworths 5 in which he said: “[24] Finally, as to the matter of the fairness between the Applicant, the person and any other persons in a like position, I not aware of any claim being made that suggests any similarity with the circumstances relevant to this applicant. [25] It is not abundantly clear to me as to how s.366(2)(e) of the FW Act operates as a guiding principle to which I need to take into account. The origins of that principle appear to often to emanate from the decision of Wilcox J in Hunter Valley Developments Pty Ltd and Ors v. Cohen [1984] FCA 176 ; (1984) 58 ALR 305. [26] That judgment, as I have read it, in fact is referable to another decision, that is the decision of Sheppard J in Wedesweiller and Others v Robert William Cole and Others [1983] FCA 94 ; (1983) 47 ALR 528. In that judgment (cited in the Australian Law Reports at pages 534 and to a limited extent at 535) Sheppard J provides for a discussion of a particular set of circumstances in which there were approximately 190 similar applications before the Federal Court of Australia at that particular time of which one of the 190 applications concerned the Applicant who was directly before Sheppard J. It is from that discussion of that particular set of circumstances, it appears as though a principle emanated that there was a necessity to consider the fairness amongst employees in similar situations as being a proper matter of consideration. [27] From that case, it further appears the matter was then associated with the reasoning of Wilcox J in Hunter Valley Developments Pty Ltd and Ors v. Cohen (as cited above), though it is not entirely evident it was applied in his reasoning in the particulars before him. [28] Nonetheless, the principle as it was then eventually appears to have been imported into the summary reasoning of Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. The Brodie-Hanns judgment, in respect of its consideration of that particular principle, seems to have approached the principle in relation to whether or not the court adopts a uniform approach to matters of a similar kind. [29] It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically.” [35] The language used in s.394(3)(f) is identical in effect to the language used by Sheppard J in Wedesweiller in describing the position put to him by senior counsel for the applicants and which he accepted: “Furthermore, as a matter of fairness amongst employees in similar situations it is only right, in his submission, that these applicants be allowed to proceed.” [36] It would appear to be consistent with the principles set down in Brodie-Hanns that the matter of fairness as between the person and other persons in a similar position should be approached on the basis that “similar position” relates to the same employer and to the same underlying issue. [37] There is nothing in Brodie-Hanns or in Hunter Valley Developments which would suggest that the Court was approaching the principle of “fairness as between the person and other persons in a similar position” in any manner inconsistent with that adopted by Sheppard J in Wedesweiller . [38] Having said that, it is clear then that the timing of applications to the Commission is not the key issue. What is the key issue is that the applicant seeking an extension of time is considered in relation to other applicants employed by the same employer and affected by the same issue who filed applications in time. [39] The possibility suggested by Richards SDP in Wilson v Woolworths at [29] that “fairness as between the person and other persons in a similar position” could permit or require the Commission “to consider how, in a general sense, similar matters have been approached historically” is a very significant departure from the principle extracted from Wedesweiller . The possibility suggested by Richards SDP appears to be a completely new principle and not something contemplated by Brodie-Hanns . Until a Full Bench says that s.394(3)(f) is not to be applied consistent with the approach adopted by Sheppard J in Wedesweiller , it would appear that s.394(3)(f) has a very limited scope of operation. [40] In the present matter there are no other persons in a similar position to the Applicant and therefore this criterion is not relevant. Conclusion [41] Having taken into account each of the relevant matters in s.394(3) I am not satisfied that any or all or any combination of them gives rise to exceptional circumstances which would warrant the granting of an extension of time. [42] The application for an unfair dismissal remedy in this matter was not filed within the time specified by s.394(2)(a) and therefore the application is dismissed. COMMISSIONER 1 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541 , 556. 2 Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14]. 3 Haining v Deputy President Drake (1998) 87 FCR 248 , 250. 4 [1983] FCA 94. 5 [2010] FWA 2480 . Printed by authority of the Commonwealth Government Printer <Price code C, PR581449>