Applicant v Respondent

Case •

[2023] FWC 1013

•

28 APRIL 2023
[2023] FWC 1013

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.365—General protections

Applicant
v

Respondent

(C2022/6807)

COMMISSIONER SCHNEIDER

PERTH, 28 APRIL 2023

Application to deal with contraventions involving dismissal

  1. The Applicant made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant had been dismissed from their employment with the Respondent in contravention of Part 3-1 of the Act.

  1. It appears that the application may have been lodged outside the required 21-day period.  

  1. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time and, if it was, whether there are exceptional circumstances giving rise to an extension of time.

  1. A confidentiality Order has been issued in relation to this matter. Accordingly, the parties’ names have been anonymized.

Relevant law

  1. Section 366(1) of the Act provides that such an application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

  1. As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

  1. The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

  1. Section 366(2) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised, taking into account:

(a)   the reason for the delay; and

(b)   any action taken by the Applicant to dispute the dismissal; and

(c)   prejudice to the employer (including prejudice caused by the delay); and

(d)   the merits of the application; and

(e)   fairness as between the Applicant and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

  1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]

  1. 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.[5]

  1. 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.[6]

  1. 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.[7]

  1. The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]

  1. The dismissal of the Applicant took effect on 1 September 2022. The final day of the 21-day period was therefore 22 September 2022 and ended at midnight on that day. The application was made on 7 October 2022. The application was made 15 days late.

  1. It is therefore necessary for the Commission, prior to dealing with the dispute further, to determine if there are exceptional circumstances giving rise to an extension of time.

  1. Accordingly, the Commission must consider whether exceptional circumstances exist and, if there are exceptional circumstances, if discretion should be exercised to allow an extension of the 21-day period.

  1. This decision contemplates the relevant considerations in section 366(2) of the Act in the context of the current application.

Submissions – Evidence – Criteria

Reason for the delay

  1. For the application to have been made within 21 days after the dismissal took effect it should have been lodged by midnight on 22 September 2022. The delay is the period commencing immediately after that time until 7 October 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]

  1. 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.[10]

  1. 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.[11]

Submissions and evidence

  1. The Applicant submitted that the delay could be attributed to the following:

·   On 31 August 2022, the Applicant had an accident on his e-bike and suffered an injury to his ankle and shoulder.

·   Following his termination from the Respondent, on 1 September 2022, the Applicant became depressed.

·   The Applicant submits that, following the termination of his employment, he relapsed into drug addiction.

  1. The Applicant provided the following evidence:

·   A copy of a medical certificate from 2 September 2022, stating that the Applicant was unfit for work on 1 September 2022.

·   Confirmation that the Applicant sought further medical attention on his ankle and shoulder via an MRI following his e-bike accident.

  1. The Respondent noted the following in relation to the reasons for delay:

·   The Applicant’s medical certificate only accounts for one of the 21 days, being 2 September 2022.

·   The Respondent submits that there is no evidence which supports the position that the Applicant was unable to submit his application on time due to the injury suffered because of the E-bike accident.

·   The Applicant has failed to provide any medical evidence which confirms his depression rendered him unable to file the application within time.

·   The Respondent confirms that the final correspondence between the parties occurred on 9 September 2022, in relation to the returning of company property and details of the Applicant’s final payments. The Respondent submits that this demonstrates that the Applicant was capable of filing his application with the Commission in time.

·   The Applicant failed to provide an explanation as to why his relapse delayed his ability to file his application within the required time period.

·   The Applicant failed to adequately explain the reasons for his application being delayed.

Findings

  1. The Applicant has provided limited information in relation to the full period of the delay in filing his application and in support of the reasons for delay. As a result, I must form my conclusions on the limited material and supporting evidence of these claims.

  1. I am satisfied that the reasons provided by the Applicant, notably his substance addiction, would understandably contribute to some difficulty in preparing his application.

  1. The reason for delay itself is not the only criteria to be assessed in determining whether exceptional circumstances exist. It must be weighed against the following. 

What action was taken by the Applicant to dispute the dismissal?

  1. The Applicant submitted that he took the following actions to dispute the dismissal:

·He attempted to contact his supervisor, as he did not agree with the Respondent’s decision to terminate his employment.

  1. The Respondent submitted that the Applicant made minimal efforts to obtain further information in relation to his dismissal. The Respondent is of the position that these efforts were insignificant.

  1. Having regard to the matters I have referred to above, although the Applicant attempted to contact the Respondent to discuss his dismissal further, there is no evidence that the Applicant took any noteworthy action to dispute his dismissal or that the Respondent had provided any assurance to the Applicant that they would discuss his dismissal further.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. It is not in dispute, and I am satisfied that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

What are the merits of the application?

  1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

  1. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. 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 section 366(2)(d)”.[12]

  1. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

  1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

Fairness as between the Applicant and other persons in a similar position

  1. The Respondent submitted that the Commission has refused to grant an extension of time for applicants in a range of circumstances and situations, including the matters listed below where applicants had filed outside the 21-day time limit.

· Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403

·   Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWAFC 5933

·   Jeremy Woolley v Hunter Valley Grammar School [2022] FWC 407

·   Jonathon Hard [2014] FWCFB 3270

  1. The Respondent submits that the reasons provided by the Applicant are not exceptional circumstances and are consistent with other matter in which the Commission has not granted an extension of time previously.

  1. Having regard to the matters referred to above, I find that, whilst the Applicant was impacted by the issues effecting his well-being, these circumstances are not unique, unusual, or exceptional in nature. I am satisfied that granting the Applicant and extension, solely in reliance on the Applicant’s reasons, would be unfair to other applicants who have advanced similar submissions or were in similar circumstances and whose applications were not granted an extension of time.

  1. As noted before, the reasons advanced need not be exceptional for an extension to be granted, and the reasons are not the only criteria to be considered in finding exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

  1. Briefly, 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.[13] 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.[14]

  1. The Applicant has been forthcoming and honest in relation to his previous issues with drug addiction and depression. Whilst I have sympathy for the Applicant and the challenges he has faced, and commend him for his recovery efforts, the Commission must draw its findings from assessment of all the material and circumstances in consideration of section 366(2) of the Act.

  1. In consideration and assessment of all the criteria above, I am not satisfied there is sufficient evidence or circumstances to warrant a finding of exceptional circumstances for the purpose of the Act.

  1. The development of mental health issues, including the triggering or relapse of pre-existing conditions, after a dismissal is unfortunate and personally difficult for the individual experiencing the issues. However, such a reaction to a dismissal is sadly commonplace and this factor alone does not give rise to exceptional circumstances. This is not to say no mental health crisis arising from a dismissal and contributing to late lodgment could warrant a finding of exceptional circumstances. The evidence and submissions regarding the nature and severity of the condition, alongside the other criteria in the Act, must be assessed in coming to such conclusion.

  1. Having regard to all of the matters listed at section 366(2) of the Act, I am not satisfied that there are exceptional circumstances.

Conclusion

  1. Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time.

  1. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order to that effect will be issued.[15]

COMMISSIONER


[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; [2015] FWCFB 1877.

[3] [2018] FWCFB 901, [39].

[4] [2011] FWAFB 975, at [13].

[5] [2011] FWAFB 975, at [13].

[6] [2018] FWCFB 901, [39].

[7] [2018] FWCFB 901, [40].

[8] [2018] FWCFB 901, [17].

[9] [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[10] [2018] FWCFB 901, [39].

[11] [2018] FWCFB 901, [40].

[12] [2011] FWAFB 975, [36].

[13] [2011] FWAFB 975, [13].

[14] [2011] FWAFB 975, [13].

[15] [PR761494].

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<PR761493>

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