Brett Mustica v Down Under Group

[2022] FWC 954

[2022] FWC 954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brett Mustica
v

Down Under Group

(U2022/871)

COMMISSIONER WILLIAMS PERTH, 26 APRIL 2022

Application for an unfair dismissal remedy

1. Mr Brett Mustica (the Applicant) has applied for an unfair dismissal remedy pursuant to Section 394 of the Fair Work Act 2009 (the Act). The respondent is Down Under Group (the Respondent)

1. Mr Mustica’s application says he was notified of his dismissal on 10 October 2021 and his dismissal took effect on 13 October 2021. His application was made on 18 January 2022.

1. The application has been made more than 21 days after the alleged dismissal took effect.

1. Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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).

(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.”

1. Consequently on 3 February 2022 the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

1. The Commission’s correspondence to the Applicant explained that if he relies on a medical condition as the reason for the delay he should supply a medical certificate or report which specifically explains why his medical condition prevented his from making his application within time.

1. The Applicant provided a written response the same day on 3 February 2022 attached to which was a letter dated 6 January 2022 from Dr Trinity Alfonsi Psychiatry Registrar of the East Metropolitan Health Service.

1. The Respondent in its form F3 – ‘Employer response to unfair dismissal application’ has provided submissions regarding the Applicant’s stated reason for the delay.

1. This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The Applicant’s reason for the delay

1. In his application as filed the Applicant did not recognise the application had been made more than 21 days after his dismissal took effect.

1. The Applicant in his response to the Commission’s correspondence however explains the reason for the delay was medical conditions which resulted from his dismissal. He says he was in hospital due to a mental health breakdown caused by the loss of his job. He refers to the attached letter and says he has only recently been discharged from the mental health hospital.

1. The letter attached by the applicant written by Dr Alfonsi is dated 6 January 2022, which is before the application to the Commission was made.

1. The letter says the Applicant has requested a letter informing of his mental health diagnosis. It says he has a diagnosis of Bipolar Affective Disorder type I.

1. The letter says,

   “ When unwell Mr Mustica may behave in disinhibited and unusual ways, as he did prior to his hospitalisation for a manic episode on 19 October 2021. Mr Mustica presented with signs and symptoms of a manic episode, leading to his admission to admission for mental health treatment.

   Mr Mustica has engaged well with all prescribed treatment and his mental state has now stabilised sufficiently for his care to be transferred to that of his GP.” (sic)

1. The letter confirms the Applicant was hospitalised on 19 October 2021, six days after his dismissal took effect.

1. The letter gives no indication as to how long the applicant was in hospital.

1. The letter does however say that the Applicants mental state has stabilised sufficiently for his care to be transferred to his GP. The statement was made on 6 January 2022 by Dr Alfonsi, 12 days before this application was made.

1. I accept that the information before the Commission demonstrates that for some part of the delay the Applicant was sufficiently unwell that this prevented him from making the application. However the information does not provide any specificity as to how long that period was.

1. The Applicant has not provided independent medical evidence that his illness was so severe that it prevented his from making the application for the full period of the delay.

1. The delay in making this application is a period of more than 10 weeks.

1. Considering the above the Applicant has provided an acceptable reason for only part of the delay, but certainly not all of the delay in making this application.

Did the Applicant first become aware of the dismissal after it had taken effect?

1. The applicant became aware of his dismissal before it took effect.

Action taken to dispute dismissal

1. The applicant did not take any other action to dispute his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

1. The delay in making the application in this case will not prejudice the employer.

The merits of the application

1. The Applicant has provided little information regarding the merits of his application.

1. In his application he says the reason for his dismissal given by the Respondent was that he was not performing his job when he was at a sports carnival for his son.

1. In the further information provided to the Commission he says he was dismissed for no reason and his father, Mr Jim Mustica, had taken a restraining order out on him.

1. In reply, the Respondent has explained its reasons for the dismissal were that the Applicant was dismissed due to unsatisfactory work performance; specifically, not being willing to perform the sales function as required in order to sustain a viable e-commerce business.

1. The Respondent’s reply refers to a clash between the father and son at a sports carnival on 10 September 2021.

1. The Respondent explains the violence restraining order was taken out against the Applicant who allegedly attempted to steal some boat equipment from his father Mr Jim Mustica’s residence.

1. The response concludes by saying that there had been months of issues with the Applicant’s work performance that were attempted to be worked through with no success.

1. Self-Evidently the Applicant and the Respondent have very different views of the reasons for the dismissal occurring.

1. When the Commission’s task is only to determine whether further time should be allowed to an Applicant to make their application the Commission does not conduct a full hearing of the merits of the matter.

1. In the absence of a full hearing, on the limited formation available, the merits of the matter are a neutral factor when considering whether further time should be allowed for the Applicant to make this application.

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

1. There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

1. The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to file this application. Taking into account all of the factors I am not persuaded that there are exceptional circumstances in this instance.

1. Consequently the Commission is not empowered to extend time for the Applicant to make this application.

1. This application has been made out of time and so must now be dismissed. An order to that effect will now be issued.

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