Ben Campbell v Can-Weld Contracting Pty Ltd

[2021] FWC 3138

[2021] FWC 3138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ben Campbell
v
Can-Weld Contracting Pty Ltd
(U2021/2773)

DEPUTY PRESIDENT DEAN CANBERRA, 2 JUNE 2021

Application for an unfair dismissal remedy – extension of time – no extension granted.

[1] Mr Ben Campbell (the Applicant) has lodged an application pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy concerning the termination of his employment with Can-Weld Contracting Pty Ltd (the Respondent).

[2] By email correspondence of 11 February 2021, the Applicant was notified that he had abandoned his employment and was provided with a separation certificate which stated that his employment with the Respondent ceased on 8 February 2021. Prior to that communication, Mr McCallum (Managing Director of the Respondent) sent an email to the Applicant on Monday 8 February requiring the Applicant to provide medical certificate for the period of his absence of three days since 3 February. The Applicant did not respond to that correspondence.

[3] On 25 February 2021 the Applicant sent an email to Mr McCallum attaching a resignation letter. The letter, also dated 25 February, indicated that he had concerns about returning to the workplace as it could potentially worsen his medical condition and that he felt he had no other choice but resign his position. The letter concluded by stating that “I hereby resign and provide two weeks’ notice effective from today.”

[4] The Applicant claimed that the emails of 8 and 11 February from the Respondent went to his junk email folder and he was not aware that he had been dismissed until 9 March 2021. He denied having abandoned his employment and said that he would not have tendered his resignation had he known that he had been dismissed.

[5] Against this background the Applicant believed that he was unfairly dismissed and lodged the application for unfair dismissal remedy on 2 April 2021.

[6] Section 394(2) of the Act states that an application for an unfair dismissal remedy 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 application in the present matter was filed 32 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[7] The matter was listed for hearing by telephone on 1 June 2021. The Applicant appeared with his wife and Mr McCallum appeared for the Respondent. Oral evidence was given by both the Applicant and Mr McCallum.

[8] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.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.²

[9] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

[10] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person 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 person and other persons in a similar position.

[11] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.

Reason for the delay

[12] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 3

[13] The Applicant gave evidence that he had been suffering from anxiety, depression and insomnia which was diagnosed on 3 February 2021. The Applicant submitted that his medical conditions, together with the stress and anxiety arising from the taking of sick leave which came on the back of a final warning issued to him by the Respondent, were the reasons for the delay in filing the application within time.

[14] The Applicant also made reference to a further delay caused by the impact of having to deal with personal matters. However, no specifics were provided in support of this argument.

[15] Three medical certificates issued by Dr Somasundaram of Kambah Medical Centre, dated 3 February 2021, 16 February 2021 and 30 March 2021, were provided by the Applicant which covered the period 3 February to 9 April 2021.

[16] I am not satisfied that the Applicant has provided any compelling medical evidence to support a finding that his medical condition prevented him from lodging the application within the statutory timeframe. The medical certificates relied upon by the Applicant do not provide any indication as to the extent of the Applicant’s incapacity. To the contrary, the fact that the Applicant was able to send email correspondence to the Respondent’s personnel on a number of occasions between February and March 2021 suggests that the Applicant was not incapacitated and was able to file an application within time.

[17] The lack of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[18] The Applicant claimed that he became aware of the dismissal on 9 March 2021. Even if this were the case, his application is still late. I consider this factor to be neutral.

Action taken to dispute the dismissal

[19] I do not consider the Applicant had taken any action to dispute the dismissal until the present application was lodged. Specifically, he tendered his resignation voluntarily about three weeks after he commenced a period of sick leave.

[20] This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[21] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[22] The Act requires me to take into account the merits of the application in considering whether to extend time.

[23] It is not in dispute that the Applicant attended a meeting with the Respondent on 3 February 2021 concerning issues about absenteeism and punctuality. As a result, he was issued with a written warning which stated, amongst other matters, that any continued absence from work will lead to the termination of his employment.

[24] The Applicant commenced a period of sick leave on 4 February 2021 which was supported by medical certificate. Although he had advised another employee about taking sick leave and sent the medical certificate (via text message) to the Respondent’s bookkeeper, on his own admission he did not comply with the Respondent’s Leave Policy and failed to follow a directive from Mr McCallum to contact him directly to report any future absences. The Applicant attributed the non-compliance to his mental state and the stress and anxiety he was suffering at the time.

[25] Mr McCallum gave evidence that the Applicant had been spoken to on multiple occasions about his absence and lateness and was given verbal and written warnings concerning these issues. The Applicant was warned that any further failure to call or produce a doctor’s certificate for absences would result in his employment being terminated. In addition, the Applicant had been specifically instructed not to communicate via text message to the bookkeeper’s private phone. Despite the warnings, the Applicant did not follow the instructions in contacting the Respondent of his absence. Mr McCallum said that he made repeated attempts to find out what the Applicant’s situation was and took the Applicant’s silence as that he was not returning to work.

[26] The Respondent submitted that the Applicant’s claim is perplexing as he failed to show up for work, failed to contact the Respondent and resigned his position.

[27] The Applicant argued that he had met his obligations of advising the Respondent of his absence on sick leave as soon as he could. Although he did not call Mr McCallum and did not email him the medical certificate, it can be reasonably expected that his verbal advice and text message to other employees of the Respondent on 3 February would be passed on to Mr McCallum.

[28] The Applicant disputed that the Respondent had made ‘repeated attempts’ to obtain information from him concerning his absence. The Applicant submitted that there were only two emails sent by the Respondent before confirming his abandonment of employment and it would have been reasonable for the Respondent to try to contact the Applicant by other means such as phone, phone message, post, emergency contract or text. The Applicant submitted that it was unjust and unreasonable to assume that he had abandoned his employment in the circumstances and it was the Respondent’s intention to exit him permanently from the worksite so as to avoid its requirement to pay notice of termination or payment of accrued entitlements.

[29] In the absence of tested evidence it is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[30] This consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. However, cases of this kind will generally turn on their own facts 4. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration.

Conclusion

[31] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that exceptional circumstances exist. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

B Campbell on his own behalf.
A McCallum for Can-Weld Contracting Pty Ltd.

Hearing details:

2021.
Canberra (By telephone):
June 1.

Printed by authority of the Commonwealth Government Printer

<PR730345>

1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

2 Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 4   Morphett v Pearcedale Egg Farm [2015] FWC 8885 at [29].