Andre Carmody v E.M. Bell and J.L. Huggard

[2021] FWC 6681

[2021] FWC 6681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andre Carmody
v
E.M. Bell and J.L. Huggard
(U2021/10956)

DEPUTY PRESIDENT COLMAN MELBOURNE, 23 DECEMBER 2021

Extension of time (s 394(3)) – application dismissed

[1] This decision concerns an application made by Mr Andre Carmody for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Carmody’s employment with E.M. Bell and J.L. Huggard, who are partners in a bicycle business, was summarily terminated on 21 October 2021. Section 394(2) of the Act states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 11 November 2021. Mr Carmody’s application was lodged on 30 November 2021, nineteen days out of time. In order for Mr Carmody’s application to proceed, he requires the Commission to grant a further period of time within which to bring his application.

[2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances.’ I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. The requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

[3] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: 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. I will consider each of these matters as they pertain to Mr Carmody’s application.

The reason for the delay (s 394(3)(a))

[4] The Act does not provide an indication as to the kinds of reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)) however decisions of the Commission have referred to an acceptable or reasonable explanation. Mr Carmody submitted that the reason for his delay was that he had been in very poor mental health at the time of and following his dismissal. Mr Carmody said that he had been suspended from work on 13 October 2021 pending an investigation into alleged misconduct, and that on 20 October 2021 he was hospitalised, having suffered a nervous breakdown. Mr Carmody said that he was released from hospital on 24 October 2021, but that he remained unwell following his discharge. Mr Carmody submitted a discharge summary from NorthWestern Mental Health, which records a principal diagnosis of depression with suicidal ideation, and states that Mr Carmody was experiencing marked anxiety and depression. Mr Carmody also submitted a letter dated 2 December 2021 from his general practitioner, Dr Makohon, to Mr Carmody’s solicitor, which enclosed the discharge summary document. In his letter, Dr Molnar stated that Mr Carmody had been admitted to the hospital for a severe nervous breakdown, which had cause severe anxiety and depression, and that Mr Carmody still has residual depression requiring significant treatment.

[5] It is clear that Mr Carmody’s medical condition at the time of his dismissal was a serious one. Mr Carmody could not reasonably have lodged the application while he was in the hospital. Because he was incapacitated, he was effectively deprived of several days of the 21-day period for lodging his application. However, although I accept that Mr Carmody remained unwell after his discharge, he has not established that his health condition prevented or seriously impeded him from lodging his application within the remaining time, or that it otherwise constituted an acceptable reason for the delay. The letter from Dr Makohan of 2 December 2021 states that Mr Carmody still required significant treatment, but this does not address the period of the delay, nor does the fact of a person requiring treatment mean that they cannot reasonably be expected to lodge an unfair dismissal application. Indeed, Mr Carmody did lodge an application. He was also able, through his father, to seek the assistance of a lawyer. In his written submissions, Mr Carmody also listed as a reason for delay the ‘stress of suspension from work’, but this was not developed, and I do not accept that this provides a reasonable or acceptable explanation for delay.

[6] Mr Carmody submitted that a further reason for the delay in lodging his unfair dismissal application was the fact that he was unable to meet with or provide documents to his solicitor, Mr Molnar, until 17 November 2021, because Mr Molnar had been required to isolate for a period of seven days after having been exposed to COVID-19. Mr Molnar submitted a statement in which he said that Mr Carmody’s father had contacted him on 10 November 2021 regarding an ‘employment issue’ but had not said that it concerned an unfair dismissal, and that an appointment was made for 17 November 2021. Mr Molnar said that the appointment on 17 November 2021 took place by Zoom, but that there were further delays in filing the application between 17 and 30 November 2021 because Mr Carmody had sent documents in hard copy, and Mr Molnar then had to request further documents, and was also very busy at this time.

[7] These matters do not provide an acceptable or reasonable explanation for the delay. The requirement for Mr Molnar to isolate did not prevent Mr Carmody from obtaining legal advice from him. Mr Carmody’s appointment on 17 November 2021 was conducted by Zoom. There is no reason why that could not have occurred earlier. Further, there was no need for Mr Carmody to send documents, or for Mr Molnar to request further documents. All that was required was the lodgment of a simple form, by any one of a variety of simple means, including by email, or even by telephone. Supporting documentation can be provided later.

[8] The unfair dismissal application was signed by Mr Molnar on 18 November 2021, but not lodged until 30 November 2021. It should have been lodged immediately, because the 21-day period had expired on 11 November 2021, and there was no need to wait for supporting documents. In my view, the delay in filing the application between 17 November 2021 and 30 November was caused by representative error and should not count against Mr Carmody. It is not however an exceptional circumstance.

[9] It remains the case that there is no acceptable explanation of the delay in respect of the period up until 17 November 2021, the day of his appointment with Mr Molnar. There is an acceptable reason for only some of the delay. I do not accept the submission of Mr Carmody’s counsel that it was impossible for him to turn his mind to an unfair dismissal application throughout the period of the delay. The evidence does not support such a conclusion. In my opinion, the consideration in s 394(3)(a) weighs against an extension of time.

Whether a person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[10] Mr Carmody was terminated with immediate effect in a letter emailed to him by the respondents on 21 October 2021. He was hospitalised at this time and contends, and I accept, that he did not become aware of his dismissal until 27 October 2021. Mr Carmody did not have the benefit of the full 21-day period to lodge his application. The consideration in s 394(3)(b) therefore weighs in favour of an extension of time.

The considerations in s 394(3)(c), (d) and (f)

[11] The considerations in ss 394(3)(c), (d) and (f) are in my view neutral factors in the present matter. Mr Carmody took no action to dispute his dismissal apart from filing this application (s 394(3)(c)). There is no evidence of prejudice to the employer (s 394(3)(d)). To the extent that the absence of prejudice to the employer could be regarded as a factor telling in favour of an extension of time, I would accord it minimal weight and regard it as a neutral factor. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Carmody and other persons in a similar position (s 394(3)(f)). Mr Carmody submitted that his situation had been ‘less fair’ than that of other persons in a similar situation because he was not allowed to attend the respondents’ premises to discuss the relevant issues because of his vaccination status, and because he was dismissed at a time when the respondents knew that he was in hospital. These matters are not relevant to s 394(3)(f). Instead, I will take account of them in connection with the general merits of the application below.

The merits of the application (s 394(3)(e))

[12] In considering whether there are exceptional circumstances, the Commission is required to take into account the merits of the application (s 394(3)(e)). No final assessment is possible, as an application to extend time is interlocutory in nature (see s 396). The respondents dismissed Mr Carmody for serious misconduct after concluding that he had committed theft and caused serious risk to the reputation of the business by removing parts of customers’ bicycles and then selling them. Mr Carmody denies the allegations and contends that he was not given an adequate opportunity to respond to them because he was not permitted to attend the workplace due to his vaccination status and was then dismissed before the investigation had been completed, at a time when the respondents were aware that he was in hospital. The respondents deny that they knew Mr Carmody was in hospital and maintain that the allegations were raised with Mr Carmody in September 2021. They submit that he was given ample opportunity to respond to the allegations in writing and that because of Mr Carmody’s stance against vaccination they could not allow him to attend the workplace to discuss them.

[13] An application to extend time is in the nature of an interlocutory application (see s 396). It is not possible to form any concluded view about the merits of the application. The merits turn on disputed points of evidence that would need to be tested if an extension of time were granted and the matter were to proceed. Much would depend on factual findings. On the limited material before me, I consider that Mr Carmody has a reasonable case, but that the respondents also have a reasonable defence. I consider the merits to be a neutral consideration in deciding whether to extend time.

Conclusion

[14] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various considerations are considered individually or together. To the extent that one might consider Mr Carmody’s breakdown and brief period of hospitalisation to be exceptional, these are not circumstances that I consider would warrant the exercise of my discretion to extend time. In my view, Mr Carmody could reasonably have filed his application on time. I decline to grant an extension of time. Mr Carmody’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

J. Molnar for Mr Carmody
S. Shahine for the respondent

Hearing details:

2021
Melbourne
23 December

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