Benjamen Crosby v Scientific Pest and Vegetation Management
[2024] FWC 1101
•26 APRIL 2024
| [2024] FWC 1101 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Benjamen Crosby
v
Scientific Pest And Vegetation Management
(U2023/12629)
| COMMISSIONER SCHNEIDER | PERTH, 26 APRIL 2024 |
Application for an unfair dismissal remedy
Benjamen Crosby (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Orkin Australia Pty Ltd T/A Scientific Pest & Vegetation Management (the Respondent).
The Respondent has objected to the application on the ground that the application is out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
A Hearing regarding the out of time issue was held. The Applicant filed submissions in the Commission on 11 April 2024. The Respondent filed submissions in the Commission on 17 April 2024. At the Hearing, the Applicant gave evidence on his own behalf and Mr Keiron Tydd provided a statement in support of the application. However, Mr Tydd was not available to give testimony at the Hearing. Having reviewed the evidence of Mr Tydd, I find it carries little weight or relevance to the extension of time matter.
Dismissal date
Relevant Law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[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]
There is no dispute between the parties that the Applicant resigned from his employment on 17 November 2023.
I am satisfied that the Applicant’s employment ended on that date.
In the submissions provided by the Respondent, they confirmed that they formally accepted the Applicant’s resignation on 21 November 2023. In the event that I have erred in the above conclusion, and 21 November 2023 was the correct final date of the Applicant’s employment with the Respondent, the application remains late and my conclusion below would remain unchanged.
It is a matter of record that the application was lodged on 17 December 2023.
Extension of time
Relevant law
Section 394(3) 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.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
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]
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]
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]
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]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration of Criteria
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 8 December 2023. The delay is the period commencing immediately after that time until 17 December 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]
The Applicant put forth several reasons as contributing to the delay.
Prior to his resignation on 17 November 2023, the Applicant had undergone surgery, in August 2023.
The Applicant submits that, whilst he was recovering at home from the surgery, a work colleague came to his house to discuss a work matter. The Applicant submits that, following a disagreement, the work colleague kicked the Applicant into a bench which caused his surgical wound to split open (the assault).
The Applicant submits that he was physically and psychologically injured by the assault.
The Applicant submits that, following the assault, his surgical wound did not heal properly and that he developed a staphylococcus (staph) infection in the wound. The Applicant submits that, due to the seriousness of the infection, he was required to attend hospital for regular treatment. The Applicant notes that the wound has still not healed.
The Applicant submits that the ongoing physical disability, resulting from the unhealed wound, has made it difficult to perform daily tasks and that he is currently not working.
The Applicant submits that the psychological impact of the assault and ongoing medical issues associated with the staph infection had an adverse impact on his mental health which contributed to the delay in filing.
The Applicant also submits that he has previously been diagnosed with Bipolar Disorder and Major Depression for which he received regular treatment from a psychologist and psychiatrist.
The Applicant provided a medical certificate, dated 9 April 2024, which noted that the Applicant was referred to Toowoomba Hospital for consideration of further surgery and confirmed that the Applicant could not sit in plant machinery.
In relation to the reason for the delay, the Respondent disputes the submissions of the Applicant.
The Respondent submits that the Applicant was not assaulted in his own home, rather, the Applicant had entered the workplace whilst on personal leave (recovering from a non-work-related surgery) and assaulted a co-worker which resulted in facial fractures to the co-worker.
The Respondent highlights that the co-worker involved in the alleged assaulted is the brother of the Applicant.
The Respondent notes that the Applicant received a written warning for his conduct.
The Respondent submits that, whilst the Applicant was off work, it received two formal complaints from co-workers of the Applicant regarding intimidating and abusive communication. The Respondent directed the Applicant to cease the conduct of which he was accused. The Respondent submits that the Applicant failed to cease the conduct.
The Respondent submits that, on 22 November 2023, it received a notification that the Applicant had commenced work at a competitor of the Respondent (AA&ES).
The Respondent submits that it had frequent dialogue with the Applicant between 21 November 2023 and 4 December 2023 in relation to alleged violations of post-employment restraints and a failure to return company property.
The Respondent submits that, as he was able to partake in work, the Applicant was more than capable of filing his application within the required period and was not so incapacitated that he was incapable of filing with the Commission.
The Applicant provided limited evidence in support of his position. The evidence that the Applicant provided is outlined below:
· Medical certificate dated 21 November 2023 from the Chinchilla Hospital which states that the Applicant was totally incapacitated for work between 16 November and 28 November 2023.
· Medical certificate dated 4 April 2024, again from the Chinchilla Hospital, which confirms that the Applicant was still receiving medical treatment for the initial non-work-related surgery from August 2023.
The Respondent notes that the Applicant did not file any medical evidence in support of a diagnosis of Bipolar Disorder and Major Depression. The Applicant stated that he did not believe this was required, as it was a longstanding condition and he had declared those items on his pre-employment medical with the Respondent.
The Respondent’s evidence included the below:
· An email from the Applicant, on 21 November 2023, in which the Applicant states, “I guess Simon if you’re threatening me with legal action saying I’ve shared confidential information without permission I’ll probably have to keep my scientific phone and lap top for evidence…”.
· Email from 22 November 2023 confirming that the Applicant had left the Respondent’s employment and was now working for another contractor, AA&ES.
· Email dated 27 November 2023 from the Applicant to Mr Richards of the Respondent, confirming that the Applicant was the Managing Director of Biokade Pty Ltd (Biokade). In this email, the Applicant confirms that he is attending several contract meetings on 29 November 2023 but that he would endeavor to return the company property on 29 November 2023.
· Email dated 29 November 2023 from the Applicant to the Respondent which stated the following:
“So just a couple of things I’ve been super busy but I’m organising the 3 uniforms I have for return, your asus laptop as well,
As for my GID card and Shell tablet as per QGC it is not the property of SPVM and if SPVM have a problem with that they are to contact Shell QGC which suits me as SPVM have a track record of using my credentials to commit fraud.
Also speaking to my solicitor handling this matter that's yet to come we're expecting as per all your legal threats I am entitled to keep my work phone and enter it into legal evidence, if you require receipt of this let me know as per my solicitors instructions.
Again Simon I am just looking out for my family.
Also my compressor has been in the shed for the last 2.5years because no one bought one. So it's my compressor in the shed worth $950 that has been used over the past 2.5 years on a daily basis.” (Emphasis added).
Upon assessment of all the material before me and the testimony at Hearing, I have concluded that the Applicant is not a reliable witness.
The Applicant consistently provided answers inconsistent with the evidence. The answers given appeared to be self-serving and for the purpose of furthering the Applicant’s position rather than truly frank and honest answers that reflected the reality of the circumstances. The Applicant consistently sought to recharacterize the email evidence provided by the Respondent to justify the late filing of this application.
For example, under cross-examination, the Applicant gave testimony that he had been “super busy” dealing with his injury prior to lodgement. The Applicant’s answer was transparently inconsistent with his email of 29 November 2023 in which he stated, “just a couple of things I’ve been super busy” (emphasis added).
In relation to Biokade, the Applicant submits that the company has three shareholders (the Applicant, Mr Tydd, and Ms Hawkins (the Applicant’s partner)) and one administrative employee. The Applicant also states that an accountant had assisted in setting up the business.
I accept that the Applicant may have had the assistance of Mr Tydd, Ms Hawkins, and an accountant to set up the Biokade business; however, on the evidence before the Commission, I do not accept that the Applicant was not involved in setting up or completing duties for Biokade in the period following his resignation from the Respondent.
I note that the Applicant provided a medical certificate, dated 21 November 2023, which states that the Applicant was totally incapacitated for work during the period between 16 November and 28 November 2023.
Despite the medical certificate, upon review of the evidence provided to the Commission, it is apparent that the Applicant was able to engage in the following activities:
· 17 November 2023 – resign from his employment with the Respondent.
· 21 November 2023 – email the Respondent to confirm that, at that point time, he would not be returning the Respondent’s phone or laptop.
· 21 November 2023 – contribute to the commencement of Biokade (ASIC records supplied by the Respondent confirm that Biokade Pty Ltd was registered on this date at 3:38PM (AEST)).
· 27 November 2023 – email the Respondent confirming that he was attending contracts meetings on 29 November 2023, but that he would attempt to return the Respondent’s property on that date.
· 29 November 2023 – send a further email to the Respondent in relation to the return of company property, confirming that he was seeking legal advice in relation to threats from the Respondent and discussions over a compressor.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant resigned from his employment on 17 November 2023 and his employment ceased with immediate effect. Therefore, the Applicant had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 17 December 2023.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted.
Specifically, the Respondent submits that, if an extension of time were granted, it would have to continue to spend time, money, and resources to defend the merit of the Applicant’s claim.
The Respondent submits that the Applicant has tried to mislead the Commission in his application form by claiming his dismissal took effect on 14 December 2023 (rendering the application within time).
The Respondent submits that it had to engage in dialogue with the Applicant following his resignation. The Respondent submits that time, money, and resources have been spent engaging with the Applicant as he failed to return company property and set up a business in direct competition with the Respondent.
The Applicant submits that, even if the relevant facts are made out by the Respondent, such prejudice is not material because the delay in filing was only nine days.
The Applicant submits that he had put the Respondent on notice that he intended to take legal action, therefore any prejudice to the Respondent is minimal.
It is evident that the Applicant stated his employment had been terminated on 14 December 2023 twice in the application form. In his testimony, the Applicant maintained that the error was a genuine accident due to using his mobile phone to attempt to lodge the application.
The Applicant claims that he had put the Respondent on notice in relation to future legal proceedings, therefore, such warning would minimise prejudice as the Respondent was aware such proceedings were imminent.
In all the circumstances, it is clear that there was inconvenience caused by the Applicant’s conduct following his resignation, however, for the purposes of prejudice against the Respondent in contemplation of an extension of time I find this consideration to be neutral.
What are the merits of the application?
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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 s.366(2)(d)”[10] and the same applies to section 394(3)(e) of the Act.
In the absence of a hearing of the evidence, 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.
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
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being a source of significant dispute between the parties and noting the email evidence provided by the Respondent is at odds with the Applicant’s submissions;
(b) the Applicant being aware of the relationship ceasing at the time that it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any notable prejudice to the employer;
(e) the merits of the application, which are unable to be determined in absence of a hearing of the evidence; and
(f) no issues of fairness arising between the Applicant and other persons in a similar position.
Briefly, to reiterate, 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.[11] 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.[12]
Having considered the evidence and submissions before me, I am unable to identify compelling evidence to support a finding that there were exceptional circumstances to warrant an extension of time being granted.
Whilst I believe the Applicant is genuine about the medical issues he is currently facing (both physically and mentally), on assessment of the evidence before me, it is clear that the Applicant was more than capable of responding to emails and communicating with the Respondent during the period of timely lodgment and the period of delay. It stands to reason that the Applicant was \ not so incapacitated that he was unable to lodge this application with the Commission prior to the 21-day period ending.
Even if I were satisfied that the Applicant was unable to file his application prior to 28 November 2023 (the final date on his medical certificate), the Applicant has not provided any evidence that supports the notion he was so incapacitated that he was unable to file his application between 28 November and 8 December 2023.
Therefore, having considered the evidence before the Commission, I am not satisfied the totality of circumstances give rise to a finding of exceptional circumstances that warrant an extension of time being granted.
In relation to the merit of the claim, there is clearly significant history between the Applicant and other employees of the Respondent. From the evidence provided by the parties, it is clear that the nature and circumstances of the events occurring between August 2023 up to the Applicant’s resignation on 17 November 2023 are heavily contested. Therefore, I have not made any judgement concerning the aggravation of the Applicant’s injury, following some sort of physical altercation with a fellow employee in August 2023.
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect has been issued.[13]
COMMISSIONER
Appearances:
B Crosby and K Hawkins for the Applicant.
R Thomson for the Respondent.
Hearing details:
2024.
Perth (by video):
April 22.
[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] Ibid; [2015] FWCFB 1877.
[3] [2018] FWCFB 901, [39].
[4] [2011] FWAFB 975, [13].
[5] Ibid.
[6] [2018] FWCFB 901, [39].
[7] Ibid, [40].
[8] Ibid, [17].
[9] [2015] FWCFB 287, [12].
[10] [2011] FWAFB 975, [36].
[11] [2011] FWAFB 975, [13].
[12] Ibid.
[13] [PR774288].
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