Allan Paul Masters v Craig Murray Family Trust T/A Firstline Roofing
[2023] FWC 62
•10 JANUARY 2023
[2023] FWC 62
The attached document replaces the document previously issued with the above code on 10 January 2023 to amend referencing.
Associate to Deputy President Dobson
Dated 11 January 2023
| [2023] FWC 62 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Allan Paul Masters
v
Craig Murray Family Trust T/A Firstline Roofing
(U2022/8844)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 10 JANUARY 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Mr Allan Paul Masters, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act (Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Craig Murray Family Trust T/A Firstline roofing, whom I will refer to as the Respondent.
Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
Having heard the parties, I delivered my decision ex tempore that I denied the Applicant’s request for an extension of time and that I would publish my reasons in due course. I now proceed to give the reasons for my decision.
Background
On 30 August 2022, the Applicant filed a Form F2 Application for Unfair Dismissal for his dismissal on 30 June 2022. Being out of time, this matter was first dealt with by the Chambers of Vice President Catanzariti who wrote to the Applicant on Friday 16 September 2022:
“Dear parties,
On the 31st of August 2022, Allan Paul Masters (the applicant) lodged an application (copy attached) with the Fair Work Commission (the Commission) seeking a remedy for what they say was an unfair dismissal from their employment by Craig Murray Family Trust T/A Firstline Roofing (the respondent).
The applicant says the dismissal took effect on the 30th of June 2022. The Fair Work Act 2009 says that an unfair dismissal application must be made within 21 days after the dismissal took effect. Therefore, it appears the application is 41 days late.
The Commission may only extend the time period for lodging an unfair dismissal application if it is satisfied that there were exceptional circumstances for not lodging the application on time.
In determining whether there are exceptional circumstances, the Commission will consider the following matters:
· the reason for the delay;
· whether the person first became aware of the dismissal after it had taken effect;
· any action taken by the person to dispute the dismissal;
· prejudice to the employer (including prejudice caused by the delay);
· the merits of the application; and
· fairness as between the person and other persons in a similar position.
Exceptional circumstances are circumstances that are:
· out of the ordinary course
· unusual
· special, or
· uncommon.
They need not be:
· unique
· unprecedented, or
· very rare.
Exceptional circumstances are NOT regularly, routinely or normally encountered. Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional. Ignorance of the timeframe for lodgement is not an exceptional circumstance.”
Vice President Catanzariti sought a response from the Applicant in writing by 5pm on Wednesday 21 September 2022 inviting the Applicant to explain how his circumstances met this bar and inviting him to provide supporting evidence.
The Applicant failed to respond.
On Friday 23 September 2022, The Chambers of Vice President Catanzariti again wrote to the Applicant:
“Dear Allan,
We have not received a response to the email below. We have not yet heard from you in relation to the issues raised below.
The Vice President directs you to respond by 5:00 pm on Monday the 26th of September.
If we do not receive a response by then, your application may be dismissed without further notice to you.”
On Monday 26 September, the Applicant responded:
“Monday, 26 September 2022 4:27 PM
To: Chambers ‐ Catanzariti VP
Subject: Re: FINAL NOTICE ‐ U2022/8844 ‐ Mr Allan Paul Masters v Craig Murray Family Trust T/A Firstline Roofing
To whom it may concern,
I’m insure as what further paperwork I can supply to you. My family had been in isolation with Covid since last sunday the 18th. I will get another copy of the referral letter from my doctors office and supply to you asap.
Thank you Allan.”
The matter was allocated to my Chambers on Thursday 15 December 2022 and directions were issued on Monday 19 December, directing the Applicant to file submissions and material in support of his case by no later than 4pm on 27 December 2022. My directions clearly set out the issues that should be addressed in relation to an extension of time as required by s.394(3) of the Act.
The Applicant failed to file that material.
On Tuesday 3 January 2023, my Chambers issued further directions to the Applicant giving him until 4pm on Wednesday 4 January 2023 to file his submissions and material and to provide reasons for his failure to follow my directions of 19 December 2022.
Again, the Applicant failed to file that material.
The parties were advised that the EOT hearing scheduled for 10:00am on Monday 9 January 2023 would become a non-compliance hearing in the first instance and would deal with the EOT matters following that.
At the hearing on Monday 9 January 2023, I gave the parties the option to express a view as to whether the matter should proceed as a determinative conference or formal hearing and explained the differences.
The parties agreed to proceed with the matter as a determinative conference and both the Applicant and Respondent were sworn in by my associate.
At the outset of the hearing, I asked the Applicant to explain why he had failed to comply with my directions of 19 December 2022. The Applicant explained that given the time of year being Christmas and having small children, he had not seen the email.
When I asked the Applicant why he had failed to comply with my direction of 3 January 2023, the Applicant claimed that he had filed his material by the 4 January 2023 deadline. Upon further investigation it became apparent that he had filed that material to the email address [email protected] rather than [email protected].
I explained to the Applicant that this was not the correct email address and asked him to forward the email to the correct email address. The Applicant was unable to do so however he did forward 38 image files over 3 emails which constituted his submissions and evidence.
I adjourned the matter for a brief period to provide the Respondent and myself with an opportunity to review those materials.
When the matter reconvened, I gave the Respondent an opportunity to express a view about whether the evidence should be admitted. The Respondent had no objection and so I permitted the filing of these materials and the statement. The witness statement and medical evidence were admitted as exhibit A1 and my associate added them to the Digital Court Book which was re-sent to all the parties for the purpose of the remainder of the hearing.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The parties agree, and I so find, that the dismissal took effect on 30 June 2022 and the application was made on 30 August 2022, some 61 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a)the reason for the delay;
(b)whether the Applicant first became aware of the dismissal after it had taken effect;
(c)any action taken by the Applicant to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 21 July 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 30 August 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.
As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.
The Applicant submitted that the delay was for the following reasons:
· That he had Covid-19 for the period of 18 July for 5 days;
· That he was admitted to the Caboolture hospital with chest pains/angina on 8 July 2022 (discharged on 9 July 2022);
· Attended a specialist appointment on 10 August 2022; and
· That he was unaware that he was required to file his application within a period of 21 days.
In relation to the reason for the delay, the Respondent submitted that the matter had been dragging on for a long time and the rules should be applied.
Turning to the evidence, the Applicant’s evidence was that:
· He had no medical evidence to support that he had covid however he says he experienced normal flu type symptoms;
· He provided a discharge summary from Caboolture hospital which confirmed he had attended the hospital on 8 July 2022 with chest pains and discharged on 9 July 2022. This documentation also included a referral to a specialist dated 9 July 2022.
· He provided a medical certificate confirming his attendance at the specialist on 10 August 2022 that declared he was fit for work.
When questioned at the Hearing:
· the Applicant acknowledged that there was no medical evidence that he was unfit during the period between his termination of employment and the filing of his unfair dismissal claim, except for the 8th and 9th of July 2022 when he was at Caboolture Hospital;
· the Applicant agreed that he was capable of going about organising his affairs as evidenced in relation to attending medical appointments and contacting a no win no pay employment lawyer during the period of delay;
· When considering that the Applicant had filed his Application 61 days after his Dismissal and the period of delay was 40 days, the Applicant agreed that even given a deduction of 5 days for the period of Covid, 2 days for the period 8 and 9 July 2022 whilst at Caboolture Hospital and 1 day for 10 August 2022 when he attended the specialist appointment, there was a 32-day period of delay that remained unexplained; and
· the reason for the 32-day delay was that he was unaware he was required to file his application within a 21-day period.
The Respondent did not provide any evidence in this respect.
Having considered that evidence, I find that the reason for the delay was that the Applicant was unaware of the requirement to file his Application within 21 days.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 30 August 2022.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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 can be considered exceptional.
Mere ignorance of the statutory time limit is not an exceptional circumstance. This is made clear in the Full Bench decisions in Nulty v Blue Star Group at [2011] FWAFB 975 and Miller v Allianz Insurance Australia at [2016] FWCFB 5472.
It is not disputed by the Applicant that the reason for the delay was ultimately the result of him not being aware of the requirement to lodge his Unfair Dismissal Application within 21 days.
Conclusion
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
I order that the jurisdictional objection be upheld, and that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Allan Masters, the Applicant.
Mr Craig Murray, for the Respondent.
Hearing details:
10am 9 January 2023 by Video.
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