Brett Gibbs v Bus Association Victoria
[2023] FWC 481
•27 FEBRUARY 2023
| [2023] FWC 481 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brett Gibbs
v
Bus Association Victoria
(U2023/703)
| COMMISSIONER CIRKOVIC | MELBOURNE, 27 FEBRUARY 2023 |
Application for an unfair dismissal remedy - unfair dismissal application filed out of time - circumstances not exceptional - application dismissed
Mr Brett Gibbs, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Bus Association Victoria whom I will refer to as the Respondent.
Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
Having heard the parties, I now proceed to give these reasons for my decision ex tempore.
This published decision reflects the decision I gave ex tempore on 27 February 2023 with corrections for grammatical, syntactical and any other insignificant errors.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The parties agree, and I so find, that the dismissal took effect on 15 December 2022, and the application was made on 29 January 2023, some 45 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the 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 5 January 2023. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 12:40PM on 29 January 2023, when the application was lodged with the Commission, although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, 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.
As the Full Bench went on to say at paragraph 40, 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.
The Applicant submitted that the delay was for the following reasons:
Upon dismissal, he was instantly cut off from his work-provided phone and internet services, which he had used for approximately 20 years;
He needed to purchase a new phone and internet service;
He needed to set up a new email address;
He was in shock with the “he said/she said allegations” which led to being instantly terminated with an overnight investigation;
All of his billing details needed to be changed, including his gas, water, electricity, banking, and memberships, and that arranging this in the Christmas and New Year period was difficult;
Discussing his termination with his family in the Christmas and New Year period was difficult;
He started to re-focus and seek legal advice around 9 and 10 January 2023, due to having difficulty getting legal advice over the Christmas and New Year period;
He was discouraged by the legal advice he received on 9 and 10 January 2023, which further delayed his application;
He was not aware of the 21-day timeframe until around 9 or 10 January 2023; and
This matter is the first unfair dismissal application he has been involved in.
The Respondent submits that the reasons cited by the Applicant do not establish a credible reason for the delay. In particular, the Respondent submits that while the Applicant was initially ‘cut off’ from the Respondent’s devices, he was permitted to continue to use the Respondent’s mobile phone until 16 December 2022 while he arranged a suitable alternative, and that he was provided with access to the Respondent’s IT network so he could download his own personal files during this time. The Respondent also notes that the Applicant had an existing or new email address by 24 December 2022, which was used to communicate with the Respondent.
On the material before me, I find that the reasons for the delay are the Applicant’s unfamiliarity with the 21-day time limit, his shock in respect of the termination, the Christmas holiday season make it difficult to access legal advice, and that his immediate attention in the days following the dismissal was spent on other tasks, such as purchasing a new phone and internet service and updating his billing details with multiple service providers.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant submits that he first became aware of the dismissal during the course of a meeting between himself, Mr Lowe and Mr Ivars Ozols, on 14 December 2022, and following a second meeting on 15 December 2022. The Respondent submits that the Applicant was notified of his dismissal on 15 December 2022 and written notice was express posted to him on the same day.
I have made a finding that the dismissal took effect on 15 December 2022. I 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.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
The Applicant submits, that he took some action to dispute the dismissal in the form of a reply email to multiple officers of the Respondent sent on 24 December 2022 outlining a timeline of his version of the events constituting his alleged misconduct.
The Respondent submits that the reply email of 24 December 2022 does not constitute action to dispute his dismissal, but that the Applicant instead “simply provided information to the Respondent.” The Respondent further notes that the Applicant did not submit that the Respondent should reconsider the termination of his employment on the basis of the provided information.
I accept the Applicant’s submission and find that he took some action to dispute his dismissal.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
The Applicant submits that the Respondent has suffered no prejudice as a result of the lateness of the application. The Respondent makes no submissions to demonstrate prejudice, but submits that the absence of the Respondent making submissions to indicate prejudice is an insufficient basis to grant an extension.
Having regard to the submissions above, in all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I note that the mere absence of prejudice is an insufficient basis to grant an extension of time.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
The Respondent submits that it had a valid reason to terminate the Applicant’s employment based on serious misconduct grounds. Broadly, the allegations against the Applicant involved allegations of misconduct said to have occurred at a Christmas party and in a work colleague’s room on 12 December 2022.
The Applicant disputes that he engaged in any inappropriate conduct involving his work colleague.
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. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, 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 an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission 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 will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
The Applicant submits that “any other person in a similar position would also have difficulty to manage a response or to gain reasonable legal advice due to the time of year,” due to the nature and speed of the termination without notice.
The Respondent submits that while it is not subject to another application of this nature, the Commission should consider that the actual filing of the Application out of time and case law dealing with similar factual circumstances, weigh against the Commission granting the extension of time.
Having regard to the submissions above, in all the circumstances and on the materials provided, I consider the issue of fairness neutral in this matter.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.
The Applicant indicates that one of the reasons for the delay in lodging his application is that he was ignorant as to the lodging requirements at least until 10 January 2023, at which point the application was already out of time, as he has never been through this process before. In Nulty, the Full Bench noted that ignorance of the statutory time limit is not of itself an exceptional circumstance.
The Applicant submits that he first became aware of the 21-day time limit on or around 9 or 10 January 2023, and that he found it difficult to access legal advice during the Christmas holiday period. During the hearing, the Applicant further submitted that the legal advice he obtained was discouraging and that this contributed to the delay in filing his application. While I accept that the Applicant experienced setbacks when attempting to obtain legal advice, I am not satisfied that this prevented him from lodging his unfair dismissal application, which is a process that involves completion of a very simple form. The rules of the Commission allow an unfair dismissal application to be lodged in a number of different ways, including by email or telephone. For completeness, I note that ultimately, the Applicant personally completed and lodged the Form F2 application in his own handwriting without nominating a legal representative.
The Applicant also points to his mental state and concerns over the effect of the dismissal on his family. Whilst I am sympathetic to the Applicant’s position and indeed any employee who suffers the loss of their employment, I note that there is no medical evidence before the Commission as to the effect of the Applicant’s mental condition on his capacity to file his unfair dismissal application on time.
The Applicant further submits that he had difficulty accessing his work phone and internet services following the termination of his employment, and that he needed to set up a new email address. That said, the Applicant confirmed during the course of the hearing that at least from 24 December 2022, he had a new email address and access to email and communicated with the Respondent.
Ultimately, I am not satisfied that the Applicant offers a reasonable explanation for failing to complete and lodge his application within the required period. I have made findings above as to the Applicant’s submissions as to unfamiliarity with the legal process and the other factors relied on by the Applicant. I do not believe the circumstances in this case individually or taken together support a finding of a reasonable explanation for the delay.
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
Having regard to all of the matters that I am required to take into account under s.394(3), I am not satisfied that the requisite exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application. Apart from some minor action taken by the Applicant to dispute the dismissal, the other factors are neutral in this matter. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
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.
COMMISSIONER
Appearances:
Mr. B. Gibbs for himself
Mr. P. Kavanagh for the Respondent
Hearing details:
2023
Melbourne
27 February
Printed by authority of the Commonwealth Government Printer
<PR751213>
0
2
0