Anthony Colin Taylor v Mallee District Aboriginal Services Limited

[2021] FWC 1179

[2021] FWC 1179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Anthony Colin Taylor
v
Mallee District Aboriginal Services Limited
(U2021/768)

COMMISSIONER MCKINNON MELBOURNE, 3 MARCH 2021

Application for an unfair dismissal remedy – extension of time.

[1] Anthony Taylor was employed as a mature age Trainee Farm Hand at Warrakoo Station’s Wiimpatja Healing Centre, a male adult rehabilitation facility for Aboriginal men. The facility is operated by Mallee District Aboriginal Services Limited.

[2] Mr Taylor had previously worked for Mallee District Aboriginal Services but had lost his job in 2018 or early 2019 after he was convicted of a criminal offence. He was then re-employed at Warrakoo Station in September 2019 on a casual basis. In March 2020 he was offered full time employment. He accepted the offer and started in the new role on 1 July 2020. His employment was terminated on 23 December 2020.

[3] On 1 February 2021, Mr Taylor applied for an unfair dismissal remedy. Applications of this kind must usually be made within 21 days after the dismissal took effect, a timeframe which in Mr Taylor’s case expired on 13 January 2021. Mr Taylor’s application was made 2 weeks and 5 days late. 1

[4] The question is whether there are exceptional circumstances in this case so that additional time for Mr Taylor to file his application should be allowed.

[5] I have decided to allow additional time for Mr Taylor to make the application because there are exceptional circumstances and because, on balance, relevant considerations support an extension of time. These are my reasons.

Relevant considerations

[6] An extension of time can only be granted if there are exceptional circumstances. This means circumstances that are “out of the ordinary course, or unusual, or special, or uncommon”. The circumstances “need not be unique, or unprecedented, or very rare”. 2 In deciding whether there are exceptional circumstances, and whether to allow additional time, I must consider:

a) the reason for the delay,

b) whether the dismissal first become known after it had taken effect,

c) any action taken to dispute the dismissal,

d) prejudice to the employer, including prejudice caused by the delay,

e) the merits of the application, and

f) fairness between the applicant and others in a similar position.

[7] Reason for delay: Mr Taylor explains his delay as needing to get away after the dismissal. He was in shock because he was excited about a second chance at employment. The dismissal occurred two days before Christmas, causing his family significant stress and anxiety. He went bush with his family on 24 December 2020 to reconnect to land and culture. They were on country for about 3 weeks – the entire period available to him to make this application.

[8] Mr Taylor says he did not know about the time limit for making an unfair dismissal application. Because his letter of termination referred to the dismissal being during his ‘probationary period’, he thought he was not entitled to apply. Mr Taylor did not have direct access to a computer to lodge the application and relied on friends to help. He did have a mobile phone, but it had no credit.

[9] Once he came home after 3 weeks away, Mr Taylor intended to raise his dismissal with Mallee District Aboriginal Services’ Board. However, its next meeting was not until February 2021 and when he spoke to one of the Board members, he was advised to apply for unfair dismissal instead. He then did so promptly.

[10] Each of these explanations are understandable. Some are ordinary responses to the experience of dismissal. Mr Taylor’s limited access to the internet and technology generally is an exceptional circumstance, although it did not affect whether the application was filed in or out of time because Mr Taylor was away and did not decide to make his application until after 21 days had passed since the dismissal. I accept that the reference to a probationary period in his letter of employment may have given Mr Taylor the wrong impression about his eligibility to make a claim, but I do not consider it to have been a deliberate misdirection on the part of Mallee District Aboriginal Services or an exceptional circumstance. Mr Taylor’s other reasons for delay are not exceptional circumstances. On balance, the reasons for delay do not support a grant of additional time.

[11] Whether the person first became aware of the dismissal after it had taken effect: Mr Taylor became aware of the dismissal at the time that it took effect on 23 December 2020. This is a neutral consideration.

[12] Any action taken by the person to dispute the dismissal: As noted above, Mr Taylor spoke with Board members about the dismissal. He did not otherwise take action to dispute the dismissal until his return from the bush in January 2021. On 22 January 2021, Mr Taylor tried to make a written application to the Commission. After asking a friend to print him off a hard copy of the application form, he filled it in and went to the post office to send it to the Commission by mail. He did not know the mailing address or details and did not sent the form in. He then took steps to arrange for an electronic copy of the form to be sent to the Commission on 1 February 2021. The failure to take reasonable steps to preserve his position before 13 January 2021 weighs against the grant of additional time. The steps taken in the period leading up to, and after, 22 January 2021 to 1 February 2021 weigh in favour.

[13] Prejudice to the employer (including prejudice caused by the delay): There is no evidence of any prejudice to Mallee District Aboriginal Services if the application proceeds. It is a neutral consideration.

[14] Merits of the application: A brief review of the file indicates that Mr Taylor was dismissed in connection with a prior criminal conviction for the assault of a woman who works as receptionist, also for Mallee District Aboriginal Services, in its Mildura office. There is a dispute about the gravity of the offence, but Mr Taylor accepted responsibility and completed his 6-month community correction order in 2019. He we re-employed later in 2019.

[15] There is a dispute about whether Mr Taylor disclosed the conviction if, and when, he submitted to a pre-employment National Police Check in September 2019, as well as who signed off on his employment at the time. Mallee District Aboriginal Services says it was his father-in-law, Keith Hampton (who has now also been dismissed). Mr Taylor says both the Human Resources Manager and Chief Executive Officer, Mr Kirby, signed off on his employment after a discussion about his police record check in Mr Kirby’s office.

[16] The case appears at least arguable for Mr Taylor in the sense that there is no automatic right to refuse to employ persons with a criminal record, particularly in circumstances where on Mr Taylor’s case, the conviction was disclosed and accepted at the relevant time. The inherent requirements of the role and the individual facts and circumstances of the case must be weighed against the serious step of denying someone the opportunity of employment. Mr Taylor’s farm hand role was stationed on a 10,000-acre property on the Murray River border between New South Wales, Victoria, and South Australia. It was 100 kilometres away from the Mildura office, working only with men.

[17] At the same time, Mallee District Aboriginal Services has a duty to provide a safe working environment for all its employees, including Mr Taylor and the woman affected by his conduct that led to a conviction. Its ability to manage that duty was potentially affected by the re-employment of Mr Taylor. In addition, Mallee District Aboriginal Services operates under a funding agreement with the National Indigenous Australians Agency and Mr Taylor’s employment was within the scope of that funding agreement. Its ability to meet its obligations under the funding agreement was potentially affected by Mr Taylor’s re-employment and the circumstances in which that occurred.

[18] On balance, the merits weigh in favour of a grant of additional time.

[19] Fairness as between the person and other persons in a similar position: Mr Hampton filed his own unfair dismissal application dealing with similar facts and within the 21-day period required. I do not have sufficient information about that application to assess its relevance to the case of Mr Taylor. It appears that there was also another casual employee at Wiimpatja Healing Centre whose employment was affected by the disclosure of a past conviction in or about November 2020. That employee was not dismissed but was instead moved to another role. The circumstances indicate that there may be a question of fairness between Mr Taylor and the other employee similarly affected. This matter weighs in favour of a grant of additional time.

Conclusion

[20] I am satisfied that on the alleged facts, and so far as the merits raise questions of dismissal relating to a prior criminal conviction, there are exceptional circumstances in this case. On balance, the circumstances relevant to whether additional time should be allowed tend in favour of the conclusion that it should.

[21] The time within which Mr Taylor is to make his application is extended to 1 February 2021.

COMMISSIONER

Appearances:

A Taylor on his own behalf.

A Brooks of Law Squared for the Respondent.

Hearing details:

2021.

Melbourne (video hearing):

March 1.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13].