Brandan Hawkins v Todd Transport Pty. Ltd
[2024] FWC 1271
•16 MAY 2024
| [2024] FWC 1271 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brandan Hawkins
v
Todd Transport Pty. Ltd.
(U2024/3115)
| COMMISSIONER SCHNEIDER | PERTH, 16 MAY 2024 |
Application for an unfair dismissal remedy
Mr Brandan Hawkins (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 has been unfairly dismissed from his employment with Todd Transport Pty Ltd (the Respondent).
The Respondent has objected to the application on the grounds that the application has been lodged outside of the legislative timeframe.
Before considering the merits of the application, the Commission must deal with the out of time issue.
A Hearing of the matter was held before the Commission. The Respondent was granted permission to be represented and the Applicant was self-represented with assistance from his support person.
Mr Shane Todd (Mr Todd), the Respondent’s Director, gave evidence on behalf of the Respondent. The Applicant did not call any witnesses.
The Applicant filed submissions in the Commission on 29 April 2024. The Respondent filed submissions in the Commission on 7 May 2024.
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]
The parties agree that the dismissal took effect on 13 December 2023.
It is a matter of record that the application was made on 18 March 2024.
As noted above, the dismissal took effect on 13 December 2023. The final day of the 21-day period was therefore 3 January 2024 and ended at midnight on that day, the application was made on 18 March 2023. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
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 3 January 2024. The delay is the period commencing immediately after that time until 18 March 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]
The Applicant submits that the delay in lodgement was caused by mental health issues.
The Applicant has been suffering from Post Traumatic Stress Disorder (PTSD) following an incident in which the Applicant submits he was physically assaulted at a client site of the Respondent.
The Applicant asserts that his condition caused notable difficulty in lodging the application within the legislative time period.
The Applicant provided a letter of support from his treating Clinical Psychologist, confirming that between December and 29 February 2024 (the date signed on the letter) the Applicant attended four sessions with his treating Clinical Psychologist.
The letter from his treating Clinical Psychologist outlined the challenges the Applicant was facing following the termination of his employment and the alleged assault.
The letter from his treating Clinical Psychologist confirmed that the Applicant’s ability to complete his application form had been impacted by his PTSD. The preparation of the application triggered the Applicant’s condition through recalling the events surrounding the end of his employment.
To support his position, the Applicant provided several screenshots of text messages and photographs of injuries related to the alleged assault.
The Applicant provided a report from a hospital emergency department, dated 17 November 2023, stating the following:
“Brandan reports of being attacked from behind in a road rage incident, held down, his head repeatedly struck against the ground, a feeling of suffocating and drifting in and out of consciousness.
Brandan has on-going concussive symptoms of dizziness / light headedness. He has features of non lethal strangulation including periorbital petechiae, subconjunctival haemorrhage and petechiae to his neck. He has bruising to his left shoulder which he reports his GP has ordered some imaging of to happen on Monday.”
In relation to the reason for the delay, the Respondent submits that the letter from the Applicant’s treating Clinical Psychologist is not compelling evidence as the letter is not a full medical report.
The Respondent further notes that the Clinical Psychologist was not called to give evidence at the Hearing.
The Respondent stresses that the letter from the Clinical Psychologist was prepared on 29 February 2024 and the Applicant did not file his application with the Commission until 18 March 2024. Therefore, the Respondent submits, the Applicant was aware the application was already out of time on 29 February 2024, yet took a further 18 days to lodge.
The Respondent notes that the language in the letter of support, that was addressed to “Fair Work Qld”, stated “as a result, he has had to delay his submission and unfortunately missed the deadline”.
The Respondent highlights that the delay is 75 days from the end of the 21-day filing period to lodgement. The Respondent submits that the evidence provided by the Applicant should not satisfy the Commission that the Applicant was so incapacitated that he was unable to file his application during this lengthy period.
The Respondent notes that, in the period following the assault but before the dismissal, the Applicant confirmed he had engaged a lawyer in a text he sent to Mr Todd. The Respondent submits that the Applicant could have continued to seek legal advice and support following the termination of his employment to ensure his application was filed within the required period.
The Respondent submits that, following the incident and subsequent termination, the Applicant was engaging with Workcover in Queensland regarding a workers compensation claim.
The Respondent submits that, seeing as he was able to participate in the above legal action, the Applicant was more than capable of lodging his application within time.
The Respondent submits that the Applicant has not provided satisfactory evidence to support a finding that he was incapable of filing an application with the Commission for the entire period of lodgement and delay.
Having regard to the above, I find that the reasons put forth by the Applicant would understandably and reasonably contribute to some delay.
Did the Applicant first become aware of the dismissal after it had taken effect?
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore 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 18 March 2024.
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 it would incur additional expenses (both time and costs) as well as suffering the inconvenience and disruption of needing to defend the matter if it is to proceed further.
I am not satisfied that the Respondent would suffer any material prejudice if an extension were granted, the prejudice asserted above is more of an assumed prejudice given the delay.
What are the merits of the application?
The competing contentions of the parties in relation to the merit of the application are set out in the filed materials.
I note that the events surrounding the alleged assault that led to the Applicant’s termination are heavily disputed by the parties.
The Applicant has provided photographs of the injuries he suffered from the alleged assault at the Respondent’s client’s site.
The Respondent received a different version of events from their client, in which it was alleged that it was actually the Applicant who had instigated the physical confrontation.
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.
I note that the Respondent also objects to the application on the grounds that the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC). Both parties have indicated the small workforce on their relevant forms although no evidence has been specifically sought regarding this issue.
Again, there is apprehension to draw a final conclusion regarding the merits of the application and the further objection without a thorough examination of the evidence. However, on the materials before the Commission, it is clear that this jurisdictional objection carries weight, and this objection would pose a significant and potentially fatal hurdle to 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.
Consideration
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 reason for the delay, being understandable in the circumstances;
(b) the Applicant being aware of the dismissal 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 material prejudice to the employer;
(e) the merits of the application, being unable to be determined ahead of a hearing of the evidence but noting the Respondent’s further objection; and
(f) no issue of fairness arising as 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]
It is clear from the Applicant’s presentation at the Hearing that the impact of the alleged assault on his mental health has been profound. I acknowledge that such impact has understandably caused prominent difficulty in preparing the application and pursuing this matter. However, I have concluded that an extension of time will not be granted in the circumstances of this matter, my reasons are as follows.
The Applicant was provided with ample opportunity to make submissions and provide evidence in support of his position.
On 17 April 2024, I issued directions requiring the parties to file materials regarding the extension of time issue. The Applicant was directed to file and serve an outline of submissions, any statements for witnesses to be called, and any supporting documents by 23 April 2024. The Applicant did not comply with that direction. The Applicant was afforded two further extensions to facilitate his compliance with the directions, eventually filing in the afternoon of 29 April 2024.
Unfortunately, the materials provided by the Applicant do not go far in support of his position as they held limited relevance to the issue currently under determination. The materials submitted by the Applicant largely comprised of text message screenshots of conversations relating to the alleged assault incident.
Although the materials provided clearly support the factual background and primary argument put forth by the Applicant, that there was an incident leading to physical and mental injury, the materials do little to address the period of delay.
The letter from the Applicant’s Clinical Psychologist, as highlighted by the Respondent, must be considered in accordance with the weight that evidence holds. It is clear that the letter is supportive of the grant of an extension of time, and I have no reason to doubt the professional opinion of the Clinical Psychologist contained within it. However, as submitted by the Respondent, the letter is not a comprehensive medical report, and no further evidence was adduced from the Clinical Psychologist or other medical professional.
The letter satisfies me of the Applicant’s condition and the author’s professional opinion at the point in time it was created. However, in the absence of more fulsome medical evidence or testimony, I am not satisfied that the letter provided conclusively supports a finding that the Applicant’s condition was such that he was unable to file his application before the eventual lodgment.
Therefore, whilst the letter weighs strongly in favor of a finding of exceptional circumstances, it must be considered in the context of the Respondent being unable to test the, notably brief, evidence contained within it through cross examination of its author.
I also agree with the submission of the Respondent that, although I am satisfied the Applicant has been diagnosed with PTSD and this condition impacted his ability to file, the letter itself is not definitive evidence in support of the position that the Applicant’s condition rendered him unable to file for the whole period of delay.
The Applicant was clearly aware that his application was out of time prior to 29 February 2024 when he obtained the letter of support. Despite this, the Applicant did not file his application with the Commission until 18 March 2024. The Applicant has not provided any explanation for this further delay. Due to the nature of the Applicant’s condition, I am inclined to believe it was understandable that there was no immediate lodgment upon receipt of the support letter. Even so, the further 19-day delay does not weigh favorably for the Applicant.
I have also considered the report from the hospital emergency room, on 17 November 2023, from which it is evident that the Applicant suffered physical injuries following the alleged assault incident. Following his injury, the Applicant was still able to converse with the Respondent in relation to his ongoing employment and engage with his workers compensation claim. Accordingly, I am not satisfied the evidence regarding the Applicant’s injuries alongside the evidence of his actions after receiving said injuries supports a conclusion that the Applicant was physically hindered to the extent that lodgment would have been delayed.
I am not unsympathetic to the situation that the Applicant has found himself in, however, the Commission has established precedent concerning the evidentiary requirements needed to support a finding of exceptional circumstances. Whilst I acknowledge that the Applicant is having a significant challenge with his mental health at the present time, upon review of the materials currently before me, I am not satisfied that there is sufficient basis to support the position that he was so incapacitated for such an extended period of time during which he was unable to file his application on a date prior to 18 March 2024.
As noted earlier in the decision, the Applicant was aware of his termination when it took effect and did not take any steps to dispute the dismissal following his termination prior to filing this application.
In assessment of all the criteria, and upon review of the materials before me, I am not satisfied that there is anything in the current matter that rises to a level which would warrant a finding of exceptional circumstances.
In the event I have erred, and there are indeed exceptional circumstances, I would not be satisfied that it is appropriate for me to exercise my discretion and extend the period for the application to be made for the following reasons.
I do not feel it is appropriate for me to exercise my discretion due to the significant length of delay, the large portion of unaddressed delay following the support letter, the significant hurdle posed by the remaining objection, and the historical difficulty in the Applicant’s ability to prosecute the matter.
Although no solid conclusion can be drawn regarding the SBFDC objection, it is clear that this alone could result in the dismissal of the application. Considering this, I feel that it would be unhelpful, and (I fear) cruel, to provide some sense of hope by way of an extension of time – allowing the matter to continue to another emotionally trying Hearing in the circumstances where, owing to the SBFDC, it could result in further disappointment.
I would conclude that to grant the Applicant an extension of time, noting the remaining issues, is not an efficient use of the Commission’s time and not in line with the objects of the Act. I would not, in good conscience, exercise my discretion and extend the period for the application to be made in consideration of the above factors.
Conclusion
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances. 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 Hawkins, Applicant and E Oswin on behalf of the Applicant.
K Press of SLF Lawyers for the Respondent.
Hearing details:
2024.
Perth (by video):
May 10.
[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] [2011] FWAFB 975, [13].
[13] [PR775042].
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