Bradley Henschke v Regius Pty Ltd
[2024] FWC 1944
•29 JULY 2024
| [2024] FWC 1944 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bradley Henschke
v
Regius Pty Ltd
(U2024/6625)
| DEPUTY PRESIDENT BELL | MELBOURNE, 29 JULY 2024 |
Application for an unfair dismissal remedy – extension of time application – circumstances not exceptional – application dismissed.
On 11 June 2024, Mr Bradley Henschke made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Henschke alleges he was unfairly dismissed by the respondent employer, Regius Pty Ltd, with the dismissal taking effect on 30 November 2021.
Mr Henschke’s application was therefore approximately 900 days late, given that s 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect.
The Commission must therefore determine in the first instance if an extension of time should be granted for the making for the application. Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 394(3) of the Act. Section 394(3) states:
“(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 applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the applicant 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 applicant and other persons in a similar position.”
In order for the Commission to allow this further period of time, it must be satisfied that there were ‘exceptional circumstances’ which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group (2011) 203 IR 1 at [13]).
When did the dismissal take effect?
Mr Henschke’s application states the dismissal took effect on 30 November 2021. The employer’s response states the dismissal took effect on 6 December 2021. While the difference is immaterial in the circumstances of the matter before me, I prefer the employer’s position.
The employer tendered a copy of a letter it sent to Mr Henschke dated 6 December 2021. That letter states in clear and unequivocal terms that Mr Henschke’s employment was being terminated, effective immediately that day (with the notice period being paid in lieu).
For completeness, Mr Henschke states in his evidence that “I was not fully aware that I had been dismissed until after the dismissal had taken effect”. While I understood this statement was made in support of a contention that Mr Henschke was unaware of his legal rights and the time limits for making an unfair dismissal application, I find on the material before me that the dismissal took effect on 6 December 2021 or no later than shortly after, upon reading the email or receiving the hard copy of the letter (which was also expressed to have been sent by registered mail).
As the application was out of time, each of the matters in s 394(3) above must be considered in assessing whether there are exceptional circumstances.[1] I set out my consideration of each matter below.
Section 394(3)(a) - Reason for the delay
In his witness statement, Mr Henschke identifies the following broad areas to explain the delay in making his unfair dismissal application. They are:
· Substantial psychological hardships, coupled with an inability to obtain timely psychological help
· Substantial financial hardships
· Initial attempts to make a Workcover claim
· Applications for support through Centrelink DSP and the NDIS
· Lack of awareness of rights
I have considered Mr Henschke’s material. While I acknowledge the genuine hardships and challenges he has clearly been dealing with since (and before) his dismissal, I do not consider that they rise to a level to adequately explain the delay in making the unfair dismissal application. As Mr Henschke’s material discloses a number of personal circumstances of a private nature, I will only provide a brief supplementary explanation for my conclusion.
On the issue of psychological hardships, Mr Henschke included two reports from Specialist Mind Care to provide evidence of his mental health difficulties. One report was by a psychiatrist the other by a psychiatric nurse practitioner. The reports, which were dated 28 March 2024, were respectively addressed to the Claims Manager of Unified Healthcare Group and for the purposes of supporting an application for the Disability Support Pension. The psychiatric reports diagnose Mr Henschke as having “Posttraumatic Stress Disorder (PTSD) – with panic attacks; with delayed expression”. The psychiatric report indicated this diagnosis was made on 22 November 2023, which followed the first clinical assessment of Mr Henschke on that same day. The psychiatric report identifies a number of restrictions or limitations upon Mr Henschke but they do not, in my opinion, go so far as to demonstrate a past inability that precluded Mr Henschke from making an unfair dismissal application or to explain why any particular delay was based on those conditions.
Mr Henschke’s material discloses that he was capable of, and did, pursue other legal claims during the same period, notwithstanding the personal, psychological and financial hardships he was evidently dealing with. Specifically, Mr Henschke was advancing a claim for a Workers Compensation claim at various stages after his dismissal. Mr Henschke’s submission states “Initially, I lodged a claim with WorkCover, believing this would provide a pathway to address the unfair dismissal and receive the necessary support.” In my view, this statement more accurately reflects the operative reasons for delay in Mr Henschke’s unfair dismissal application. The pursuit of an alternative claim is not, however, a matter pointing to “exceptional circumstances”, even if it was the case that Mr Henschke did not have the means or resources to pursue more than one challenge at a time. I make similar observations about Mr Henschke’s attempts to pursue applications via Centrelink DSP or the NDIS. Similarly, in an email sent on 10 August 2023 from Mr Henschke, he was separately pursuing an insurance claim at the time for events arising from his employment. As he stated in his email, “…I’m trying to do the insurance side instead of going back down the work cover side, so it won’t cost you [the employer] any money at all”.
While I accept that Mr Henschke was not specifically aware of the statutory time limits to make an application for an unfair dismissal remedy, it is well established that ignorance about such matters is not itself a matter supportive of a finding of exceptional circumstances. Mere ignorance of the statutory time limit is not an exceptional circumstance.[2] This is a circumstance shared by many applicants before the Fair Work Commission.
In summary, whether taken individually or collectively, I do not consider that the reasons provided by Mr Henschke are supportive of an overall conclusion of exceptional circumstances. They are matters which weigh against Mr Henschke’s application and, in light of the length of the delay, weigh heavily against his application.
Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?
There is no evidence to suggest that Mr Henschke was unaware of the immediate effect of his dismissal at the time. To the contrary, on 9 December 2021, three days after the date of the letter of dismissal, Mr Henschke sent an email demanding payments allegedly owed, coupled with a threat to refer the employer to a “debt collection agency” if the sums were not paid. It is highly improbable he was unaware of his dismissal at that time. Therefore, he had the benefit of the full period of 21 days to lodge the unfair dismissal application.
I do not consider these are circumstances supportive of an overall finding of exceptional circumstances.
Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[3]
Primarily, Mr Henschke points to his WorkCover applications as action taken by him to dispute the dismissal. Mr Henschke also points to his applications to Centrelink and the NDIS as evidence of action by him to “address the consequence of my dismissal”. So much can be accepted, although I do not consider that these actions are actions to dispute the dismissal, as such, as distinct from actions to deal with the consequences of the dismissal.
I do not consider that these factors are supportive of a finding of exceptional circumstances, although I will treat this factor neutrally between the parties.
Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?
The employer asserts in its submissions that it would be prejudiced by the delay. It did not, however, lead any evidence in support of that assertion.
It is difficult to conclude whether there would be prejudice to the employer or not. In part, the answer to that question depends upon how Mr Henschke would intend to run his unfair dismissal case. The material before me on that question is unclear. Mr Henschke broadly asserts that the “circumstances surrounding my dismissal raise significant questions about the fairness and reasonableness of the employer’s actions”. Mr Henschke points to a specific event on 23 July 2021 that caused him “severe psychological distress” and states the employer “did not adequately address this distress, and instead of providing the necessary support and accommodations”, he was dismissed.
Based upon those generalised allegations, it is quite possible that the employer would be required to put on evidence addressing nuanced and somewhat subjective assessments of events from over three years ago. As a general proposition, I consider there is a real risk that one or more relevant witnesses will struggle to do so, to the possible prejudice of the employer.
While I am unable to conclude whether there will be prejudice to the employer, I do not consider that these factors are supportive of a finding of exceptional circumstances.
Section 394(3)(e) - What are the merits of the application?
I have already made some brief observations about the events that led to the dismissal, above.
On the limited material before me, it appears that each side has a differing version of the events leading to the termination of the employment. Having considered the nature of the allegations, as described in the parties’ respective material filed with the Commission, I am satisfied that the resolution of the parties’ competing positions would require findings of fact about specific incidents involving more than one witness.
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)”[4] and the same applies to s 394(3)(e).
Nonetheless, when a person makes an application under s 394 of the Act concerning an unfair dismissal claim, they are required to “apply to the FWC for an order under Division 4 granting a remedy” (my emphasis). A person is not applying for an order for a standalone declaration or finding that a dismissal was unfair per se.
Although satisfaction that the dismissal was unfair is an essential step before the granting of a remedy, it is important to recognise that the only positive orders that might be made in favour of an applicant are for a remedy – being reinstatement or compensation. In the present case, Mr Henschke has not worked at all since about August 2021 and the medical evidence he supplied indicates no short or medium work capacity at all. It is unclear to me how Mr Henschke could possibly obtain a remedy for unfair dismissal in circumstances where he would have been, and still is, unable to work.
In my view, these are matters that weigh against a finding of exceptional circumstances.
Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position
Neither party raised any relevant matter before me to indicate any issue of fairness between Mr Henschke and other persons in a similar position.
For the purpose of this application, I consider that this is a matter to be treated neutrally.
Are there exceptional circumstances?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[5] 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.[6]
The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. [7]
I have set out my findings for each of the factors in s 394(3)(a) – (f) above.
When having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[8] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
B Henschke on his own behalf
E Pyers of Queensland Chamber of Commerce and Industry Limited T/A Business Chamber Queensland for the Respondent
Determinative conference details:
2024.
Melbourne (by video link via Microsoft Teams):
July 25.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] PR777445.
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