Applicant v Serco Australia Pty Ltd
[2023] FWC 516
•14 MARCH 2023
| [2023] FWC 516 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Applicant
v
Serco Australia Pty Ltd
(U2023/796)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 14 MARCH 2023 |
Application for an unfair dismissal remedy
The issue and outcome
On 1 February 2023, the Applicant applied for an unfair dismissal remedy having been purportedly dismissed from ‘Serco Australia’ on 6 December 2022 – the day when he resigned. The Applicant lodged his unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). An amended application was filed on 4 February 2023. Serco Australia Pty Ltd (the Respondent) objected to the application and amended application on the basis that they had been filed outside of time and the Applicant had not been dismissed. This decision deals with the out of time objection.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect and the other, whether the Applicant was protected from unfair dismissal.
Unquestionably, the parties are in dispute over whether the Applicant was dismissed. The Applicant clearly considers he was, and the Respondent disagrees. However, the first issue requiring attention is whether the application has been validly made.
The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken into account.
In Herc v Hays Specialist Recruitment (Australia) Pty Ltd, the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[1] It is accepted that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[2] The proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[3] This of course requires an assumption that an applicant is an employee for this purpose.[4]
For the reasons that follow, I have found that the Applicant’s employment ended on 6 December 2022. It follows that the Applicant’s application was made 35 days outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the Application is dismissed. An Order[5] to this effect will be issued with this decision. It is noted that I allowed an amendment to the name of the Respondent pursuant to s 586 of the Act.
Background
The Applicant has had an extensive work history with the Respondent.
Prior to his employment ending, the Applicant was working at one of the Respondent’s client’s health facilities. The Applicant had taken personal leave, which had been extended.
Included in the Applicant’s materials filed with the Commission was a letter dated 2 November 2022. That letter set out that the Applicant had, in the last 12 months, taken 59 days of unpaid personal leave, equating to 17 full weeks of personal leave, and that his last shift worked was on 21 July 2022. The letter continued:
Serco supports employees who are absent from work due to temporary illnesses however your ongoing absences are having an operational impact and we seek to understand whether there are factors impacting your ability to attend work, and whether you have the ability to fulfil your full-time rostered hours.
Therefore we request for you to provide us information regarding the below:
·Completed information from your doctor (please refer to the attached letter, and job description). Please provide any relevant advice or medical information from your general practitioner relating to any ongoing medical matter that may be impacting your ability to attend work.
·Details on the impact of your medical illness on your capacity to work.
·Detailed of the expected date at which you can return to work.
·Our ability to support you in this period.
Having discussed with his Manager concerns about forwarding medical certificates to a shared mailbox, it was agreed that he could send his information to his Manager and remain in direct contact with her.
The Applicant said he was in fear of losing his job, but he complied with the instruction, revealing all his medical conditions, albeit he informed the Respondent how he felt about it.
The Applicant stated that he received a new certificate from his General Practitioner that stated he would return (presumedly to work) on 10 December 2022. However, the Applicant expressed he was unable to return to work as he was still unwell having commenced a new medication that had adverse side effects.
The Applicant emailed his Manager on 6 December 2022 informing her that he was still unwell and that he would resign:
…Firstly thank you for your continued efforts and time in dealing with my long term health battles and leave from work. My intention was to get better and return to the workplace once again to a job that I know and love.
This has not been the case and I am very sorry you have been given days notice to cover my future shifts. Please accept this email as my formal resignation.
I will be unable to return effective immediately. I know this has not been fair with you and the team with the length of time I have taken from work and sincerely appreciate that you have held my position until now.
I will find new work when I am well enough to do so.
The Applicant’s Manager responded to the Applicant by email on 9 December 2022, writing:
…Further to our earlier discussions and my meeting with HR, I accept your resignation …effective 6 December.
I have informed HR that we have discussed potential opportunities for you to re-apply for a role in the coming months/year. And I encourage you to contact me, when the time is right for you, so that we can explore that employment options may be mutually suitable and available…
The Applicant confirmed that his Manager called him on 6 December 2022 and discussed with him that he did not have to leave and that he could look at stepping back to casual and then at a later point to part-time. The Applicant said that he was grateful that he did not have to leave and knew he could get well and have a job to which to return.
The Applicant stated that he then received an email from his Manager stating that his resignation had now been accepted and encouraged him to contact her when well enough in the months or year to come to discuss mutual employment.
The Applicant reports that he sobbed on the day of receiving the email from his Manager as it was not what was discussed on the telephone. The Applicant noted that he did not have the strength in him at the time (presumedly to oppose the acceptance of his resignation) and wanted to ensure that he left on good terms. Therefore, the Applicant said that he wrote back to his Manager thanking her and informing her that he was grateful to be able to return when well enough and said that he would be in touch in early 2023 for a role:
…Thank you for everything you have done and your time.
I sincerely hope to contact you early next year and being able to have an opportunity of applying for a role in another contract. (Aware this will not be the same as I had)
In the meantime please let the team know this has been the best job I have had and the best people I have ever worked with. Please thank them for being wonder colleagues and Team Leaders. I will be focusing on my health in the meantime and hope to see them all again…
The Applicant stated that he received a call on 27 January 2023 from a fellow colleague asking when he was expected back at work. The same colleague purportedly informed the Applicant that customer service roles had been given to a Team Leader’s brother and the Manager had also given two full-time roles to friends and one was a leadership position. The Applicant said that his colleague had mentioned that his former Manager had forwarded an email to the Applicant’s co-workers advising that they were exploring opportunities for him to return in the future. The Applicant said that this was upsetting as he felt he was intimidated and ushered out to pave the way to be replaced while under health duress. The Applicant said he felt he had been thrown on the scrap heap.
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) whether the person first 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.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[6] It is accepted that 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, can be considered exceptional.[7]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[8]
3.1 Reason for the delay
The Applicant’s last day of employment was 6 December 2022, the Respondent accepted his resignation on 9 December 2022, and his initial unfair dismissal application was made on 1 February 2023, some 33 days late.
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[9] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered.[10]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[11] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[12]
In respect of the delay, the Applicant explained he had never applied for an unfair dismissal remedy in his lifetime. However, in Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’. The Full Bench said that:
In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[13]
It is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[14]
The Applicant’s submissions make reference to the confidential medical conditions he was afflicted by as evinced in the medical records he provided. The conditions appear to have pre-dated his decision to resign from his employment. Reference to these pre-existing medical conditions does not assist the Commission in determining whether there are, in the circumstances, plausible reasons for the period of the delay.
Accordingly, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period.
3.2 Whether the person first became aware of the dismissal after it had taken effect
I am of the view that the Applicant became aware that his employment had ended effect on 6 December 2022, when he resigned from his position. In all of the circumstances, I consider this to be a neutral consideration, not weighing against or toward a finding of exceptional circumstances.
3.3 Action taken by the person to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the applications on 1 February 2023 and 4 February 2023. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
3.4 Prejudice to the employer
It is not apparent that the Respondent has asserted any prejudice. It is noted that a ‘lack of prejudice is a positive factor but not a major factor’ in considering exceptional circumstances.[15] I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances of this case.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[16] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[17]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[18] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
The Respondent submitted that the application lacked merit based on the documents filed by the Applicant, noting that those same documents evinced the Applicant appeared to have resigned.
However, whilst the Applicant has not explained how his resignation was either a result of the conduct of the Respondent or that he was placed in a position where he had no option but to resign, it is not expected at this stage that the merits of the application or a jurisdictional objection to the same would be fully explored. As such, the merits in this case are a neutral factor.
3.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[19]
Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, and as such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
The Applicant has not provided a satisfactory explanation for the delay in making his application. The remaining matters I need to consider tell neither for nor against the application for an extension of time. In these circumstances, having considered all submissions, I am not convinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.
The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for unfair dismissal remedy is therefore dismissed.
It is also observed that the Applicant applied for confidentiality orders in the context of his unfair dismissal application and extension of time request. The Applicant adjured the suppression of his name and that his health conditions are not made public. The Respondent submitted that it had no objection to the making of such orders.
The publication requirement in s 601(4) may be affected by the exercise of the power in s 594(1)(d) of the Act to prohibit or restrict the publication of the whole or any part of a Commission decision or reasons in relation to a matter on confidentiality grounds. It may also be affected by the exercise of power under s 593(3)(c) to prohibit or restrict publication of the names and addresses of persons appearing at a hearing. The exercise of power in this respect is informed by the need to give paramount consideration to the principle of open justice, and departure from this principle will only usually be permitted where not to do so would defeat the proper administration of justice.[20] The potential for embarrassment, distress or damage to reputation will not usually be a sufficient basis by itself for the making of confidentiality orders under ss 593(3) or 594(1).[21]
In support of his application, the Applicant has candidly disclosed a melange of health afflictions that pre-date his dismissal in addition to outlining trauma. In all of the circumstances, I am persuaded that on this occasion making public such afflictions would be of detriment to the Applicant and that detriment to him outweighs, in my view, the principle of open justice.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] [2022] FWCFB 234, [15].
[2] Ibid.
[3] Ibid.
[4] Ibid [17].
[5] PR751325.
[6] (2011) 203 IR 1, 5 [13] (Nulty).
[7] Ibid 6 [13].
[8] (2018) 273 IR 156, 165 [38] (emphasis in original).
[9] Ibid 165 [39].
[10] Ibid.
[11] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[12] Shaw v Australia and New Zealand Banking Group Limited (2015) 246 IR 362, 366 [12].
[13] Nulty (n 6) 6 [14].
[14] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].
[15] Caire v Imscan Technologies[2013] FWC 3154, [16].
[16] (1997) 140 IR 1.
[17] Ibid 11.
[18] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[19] [2015] FWC 8885, [29].
[20] Zhang v Wealth for Life Institute Pty Ltd [2021] FWCFB 2605, [22].
[21] Mac v Bank of Queensland Ltd (2015) 247 IR 274, 277–8 [6]–[9].
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