1
Fair Work Act 2009
s.394—Unfair dismissal
Liam Hambridge
v
Spotless Facilities Services Pty Ltd
(U2017/1338)
DEPUTY PRESIDENT KOVACIC CANBERRA, 18 APRIL 2017
Application for relief from unfair dismissal - extension of time - no exceptional circumstances
warranting a further period for the making of an application - application dismissed.
[1] Mr Liam Hambridge (the Applicant) made an application which was received by the
Fair Work Commission (the Commission) on 9 February 2017 under s.394 of the Fair Work
Act 2009 (the Act) alleging that the termination of his employment by Spotless Facilities
Services Pty Ltd (Spotless – the Respondent) on 25 November 2016 was unfair.
[2] The Commission wrote to Mr Hambridge on 10 February 2016 advising him that his
application was received outside the 21 day statutory timeframe in which an unfair dismissal
application must be lodged and that a decision to extend the time in which he was allowed to
lodge his claim would need to precede the determination of the merits of his application. Mr
Hambridge’s application was lodged 55 days outside the 21 day statutory timeframe. The
Commission further advised Mr Hambridge that conciliation on his application would be
conducted by a Commission conciliator on 15 March 2017. The Commission wrote in similar
terms to the Respondent.
[3] Conciliation did not resolve the matter. Accordingly, the matter was listed for mention
and directions on 6 April 2017 with both parties agreeing that the Commission should hear
them on the extension of time issue at that time. At the hearing Mr Hambridge appeared on
his own behalf, while Ms Celia Yuen, Spotless’ Head of Group Workplace Relations and HR
Legal, appeared for Respondent.
[4] For the reasons outlined below I have found that there are no exceptional
circumstances warranting the granting of a further period for the making of an application
under s.394 of the Act. Accordingly, the application cannot proceed and will be dismissed.
[2017] FWC 2148 [Note: This decision and the associated order has been
quashed - refer to Full Bench decision dated 7 July 2017 [2017] FWCFB
2811]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb2811.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb2811.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr591917.htm
[2017] FWC 2148
2
Background
[5] On 21 November 2016, i.e. prior to his dismissal on 25 November 2016, Mr
Hambridge lodged an application for an order to stop bullying with the Commission1. That
application was discontinued by Mr Hambridge on 1 December 2016. I note that in his
bullying application Mr Hambridge stated:
“I have discussed with a solicitor who advised if I was dismissed I could go for unfair
dismissal but they are too costly to address the current matters before dismissal takes
place”2
[6] On 9 December 2016 Mr Hambridge lodged a general protections application3 with
the Commission. The covering email attached to Mr Hambridge’s general protections
application stated:
“Please see attached F8 application for unfair dismissal lodged by Liam Hambridge
against Spotless Pty Ltd.”
[7] In its Form F8A—Response to general protections application Spotless denied that
there was any adverse action against Mr Hambridge because he proposed to exercise a
workplace right. The response did not refer to unfair dismissal.
[8] Mr Hambridge’s general protections application was listed for conciliation on 7
February 2017. However that conciliation could not proceed for the reasons outlined below.
An examination of the Commission’s electronic case management system indicates that the
conciliator made the following note on the electronic file regarding Mr Hambridge’s general
protections application on 7 February 2017:
“Applicant advised that at all times he had filed an unfair dismissal. Advising that he
had lodged the application (F8) believing that he was filing an Unfair Dismissal, the
subject heading of the application email was “Unfair Dismissal” the body of the letter
related to unfair dismissal and was surprised to learn that we were dealing with a
General Protection. He then went on to say that he had received a receipt from FWC
stating that he had filed an unfair dismissal. He has requested time to seek legal
advice. The conciliation could not proceed.”
[9] On 9 February 2017 Mr Hambridge lodged his unfair dismissal application and
simultaneously discontinued his general protections application. The covering email attached
to Mr Hambridge’s unfair dismissal application stated:
“Please see attached F2 application for unfair dismissal lodged by Liam Hambridge
against Spotless Pty Ltd.
I have also attached documentation of incorrect F8 submission which needs to be
withdrawn at the same time as this F2 submission. Attachments are to support special
dispensation to be made for F2 submission being outside the required 21 days due to
incorrect information being provided by FWC and F8 form being submitted without
clarification of clear intentions to submit for unfair dismissal.”
[2017] FWC 2148
3
The Relevant Legislation
[10] Section 394 of the Act provides:
“394 Application for Unfair Dismissal Remedy
394(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
394(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (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 first person 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.”
Whether to allow a further period for the application to be made under s.394(2)
[11] In deciding whether to allow a further period for an application to be made the
Commission must take into account the matters set out in s.394(3) above. I will deal with each
of those matters separately.
(a) The reason for the delay
[12] In responding to the question in the unfair dismissal application form regarding
whether the application was being made within 21 calendar days of the dismissal taking
effect, Mr Hambridge stated:
“I submitted an application for unfair dismissal 9th December 2016 which was within
21 days but was not made aware until during my hearing 7th February 2017 that the
form the FWC had directed me to was an F8 for unlawful dismissal. All
correspondence can clearly show that my intention was to submit a claim for unfair
dismissal and should have been advised to me by the FWC when it was submitted (see
attached submission). For this reason I believe my application should be accepted at
the same time as my withdrawal of my incorrect F8 application. At no point
throughout the process was it made known to me that my submission was not for
unfair dismissal and if I was made aware straight after my application I would have
withdrawn and resubmitted within the 21 days, the only reason I did not was because I
had to wait for the hearing in February, I believe the time between my original
submission and the hearing should not be counted in the 21 days.”4
[2017] FWC 2148
4
[13] At the hearing, Mr Hambridge submitted that when he was dismissed he was not paid
any entitlements which left him in a vulnerable financial position and meant that he could not
afford to obtain legal advice regarding the options open to him to dispute his dismissal. Mr
Hambridge further submitted that:
when his bullying application was dismissed following his dismissal he contacted
the Commission and indicated that he wanted to go for unfair dismissal, adding that
the Commission incorrectly directed him to the Form F8;
he was unaware that there were different application forms for unfair dismissal and
general protections disputes involving dismissal;
the covering email to his general protections application referred to unfair dismissal;
he only became aware that he had not lodged an unfair dismissal application on 7
February 2017 when advised by the Commission’s conciliator;
the arguments in support of his application had not changed between his general
protections and unfair dismissal applications; and
it would be an injustice were the Respondent to be able to get away with their
actions as a result of a “loophole”.
[14] In response to questions from the Commission at the hearing, Mr Hambridge stated:
when discussing his circumstances with Commission staff prior to making his
general protections application, he was trying to get advice and said that he had been
unfairly treated and did not want to let them [Spotless] get away with it, reiterating
that he was directed to the Form F8 by Commission staff; and
he used the search function on the Commission’s website to download the Form F8.
[15] Spotless contended in its Form F3—Employer Response to Unfair Dismissal
Application that:
there were no exceptional circumstances, adding that Mr Hambridge’s reason for the
delay in lodging his application, i.e. that he first lodged an incorrect application, was
not an exceptional circumstance;
there was no evidence to substantiate Mr Hambridge’s contention that the
Commission directed him to use a Form F8—General protections application
involving dismissal;
Mr Hambridge’s contention that he did not understand the nature of the claim he was
making should not be accepted, with Spotless pointing to the response provided by
Mr Hambridge at Item 3.3 of his general protections application which referred to
concerns he raised regarding mistreatment and bullying in the workplace5;
even if the Commission were to accept that Mr Hambridge genuinely believed that
he had made an unfair dismissal application he should have known that this was not
the case based the information available to him, including that the Form F8 is headed
“General protections application involving dismissal”; and
a failure by Mr Hambridge to carefully read this information and hence become
aware of the nature of the application he was making did not amount to an
exceptional circumstance.
[16] In its Form F3, Spotless also relied on the decision of Commissioner Gregory in Gani
Ardolli v Money Talk Pty Ltd T/A Money Talk Planners6(Ardolli).
[2017] FWC 2148
5
[17] At the hearing Spotless relied on its Form F3 and elaborated on aspects of it. Spotless
also responded to some of Mr Hambridge’s submissions, submitting that all of Mr
Hambridge’s legal entitlements were paid to him following his dismissal and that it was not
relying on a “loophole” in this case.
[18] Based on the material before the Commission it is clear that Mr Hambridge intended
to make an unfair dismissal application but used the wrong form when he lodged his general
protections application on 9 December 2017. As previously noted, Mr Hambridge contended
that he was directed to the Form F8 by Commission staff. However, Mr Hambridge did not
produce any material to substantiate that claim. In the absence of such material, I am not
satisfied that the claim is made out, particularly as Mr Hambridge acknowledged at the
hearing that the Commission staff with whom he spoke in December 2016 indicated that they
were unable to provide him with advice. Further, it is not clear whether Mr Hambridge
explicitly told the Commission staff he spoke to that he wished to make an unfair dismissal
application.
[19] Beyond that, Mr Hambridge’s claim that he downloaded the Form F8 from the
Commission’s website by using the search function on the website is not supported by an
attempt at the time of this decision by the Commission to do so. For instance, entering “Form
F8” into the search field on the Commission’s website sees the first result identified being a
link to the Forms page on the Commission’s website, with the unfair dismissal application
form (Form F2) the second form on various forms listed on that page and above the Form F8.
Similarly, entering “F8” in the search field does not automatically bring up the Form F8.
[20] The above analysis supports a finding that Mr Hambridge simply used the wrong
form. While he may have done so inadvertently, in the absence of any probative evidence to
the contrary the error appears to have been his.
[21] As noted by Commissioner Gregory in Ardolli “Ignorance of the law and the
Commission’s procedures are circumstances that are often encountered.”7 That appears to be
the case in this matter.
[22] This does not point to the existence of exceptional circumstances.
(b) Whether the first person became aware of the dismissal after it had taken effect
[23] It was not disputed that Mr Hambridge became aware of his dismissal on the day it
took effect.
[24] This does not point to the existence of exceptional circumstances.
(c) Any action taken by the person to dispute the dismissal
[25] It is not disputed that Mr Hambridge lodged a general protections application
involving dismissal on 9 December 2016. At the hearing, Mr Hambridge stated in response to
a question from the Commission that other than lodging his general protections application he
took no other steps to dispute his dismissal.
[26] Against that background, I consider this factor to be a neutral consideration.
[2017] FWC 2148
6
(d) Prejudice to the employer (including prejudice caused by the delay)
[27] Mr Hambridge contended that Spotless would not be prejudiced were an extension of
time granted.
[28] Spotless submitted that it would be prejudiced were an extension of time granted,
adding that that prejudice would be exacerbated by the fact that it had expended time, energy
and resources in responding to two separate applications and attending a conciliation in
respect of Mr Hambridge’s general protections application.
[29] While I note Spotless’ submissions in this regard, the reasons relied upon do not of
themself constitute prejudice in the sense that it would be disadvantaged in defending the
application were an extension of time granted.
[30] I therefore consider the issue of prejudice to be a neutral consideration.
(e) The merits of the application
[31] Mr Hambridge stated at the hearing that he believed there was no disputing that his
dismissal was totally unfair, adding that there was no merit in the grounds relied upon for his
dismissal and that he had a lot of evidence which showed both that Spotless relied on
incorrect statements and the unfair treatment that he was subjected to in the lead up to his
dismissal.
[32] Spotless strongly disputed Mr Hambridge’s contention that it was not disputed that his
dismissal was not fair and that there was no merit to the grounds relied upon by Spotless for
dismissing Mr Hambridge. In terms of the events leading to Mr Hambridge’s dismissal,
Spotless contended that it had investigated the matters, provided Mr Hambridge with an
opportunity to respond and took his response into account before deciding to terminate his
employment.
[33] From the above, it is clear that the reasons relied upon by Spotless for dismissing Mr
Hambridge are disputed by him. In the absence of a substantive hearing of the evidence I am
therefore unable to form a considered view as to the merits of Mr Hambridge’s application.
[34] Against that background, I consider this factor to be neutral consideration.
(f) Fairness as between the person and other persons in a similar position
[35] At the hearing Mr Hambridge contended among other things that it would be unfair for
his case to be dismissed as a result of a “loophole.”
[36] As previously noted, at the hearing Spotless denied that it was relying on a loophole in
this matter.
[37] As neither party directly addressed this factor in their submissions, I consider this
factor to be a neutral consideration.
[2017] FWC 2148
7
Conclusion
[38] The question of exceptional circumstances was dealt with by a Full Bench of Fair
Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group8(Nulty) in the
following way:
“[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.”
[39] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the
decision in Nulty, I find that there are no exceptional circumstances warranting the granting of
further period for the making of an application for an unfair dismissal remedy. Accordingly,
Mr Hambridge’s application cannot proceed and will be dismissed. An order to that effect will
be issued with this decision.
Appearances:
L. Hambridge on his own behalf.
C. Yuen for the Respondent.
Telephone Hearing details:
Canberra.
2017.
April 6.
Printed by authority of the Commonwealth Government Printer
Price code C, PR591905
THE FAIR WORK ÇOMM - AUSTRALIA DEPUN PRESIDENTS NOUS THE
[2017] FWC 2148
8
1 AB2016/739
2 Form F72 – Application for an order to stop bullying at Item 6.2
3 C2016/7247
4 Form F2 Unfair dismissal application at Item 1.4
5 Item 3.3 of the Form F8 asks “Explain how the action you have described in 3.1 has contravened the section(s) of the Fair
Work Act 2009 you identified in question 3.2.”
6 [2015] FWC 4557
7 Ibid at [33]
8
(2011) 203 IR 1
