Caleb Wickham v Planted Cootamundra

[2020] FWC 4755

[2020] FWC 4755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Caleb Wickham
v
Planted Cootamundra
(U2020/3538)

COMMISSIONER CAMBRIDGE SYDNEY, 7 SEPTEMBER 2020

Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Caleb Wickham (the applicant) and the respondent employer has been identified as R.F de Belin & R.I de Belin trading as Planted Cootamundra (the employer).

[2] The application was lodged with the Fair Work Commission (the Commission) at Sydney on 24 March 2020. The application indicated that the date that the applicant’s dismissal took effect was 29 January 2020. Therefore, the application was made some 34 days after the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] On 9 April 2020, the employer filed a response to the application (Form F3) which identified a jurisdictional objection to the application on the basis that the application, made on 24 March 2020, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection). The Form F3 also identified a further jurisdictional objection on the basis that the employer was a small business and it had complied with the Small Business Fair Dismissal code (the SBFD code objection).

[4] Conciliation of the matter that had been listed for 27 April 2020, did not proceed because the employer requested that the out of time objection be determined as a discrete initial matter. On 11 May 2020, Catanzariti VP sent a letter to the applicant which, in summary, required that the applicant provide documentary material upon which exceptional circumstances could be established in order to permit the matter to proceed over the out of time objection raised by the employer.

[5] On 22 May 2020, the applicant provided the chambers of Catanzariti VP with a document that was expressed “to explain the circumstances in the delay for submitting my unfair dismissal claim.” This document attached a copy of a Medical Certificate dated 21/05/2020 provided for Mr Eric Wickham, the applicant’s father. The applicant provided these documents as material upon which he relied in opposition to the out of time objection.

[6] On 28 May 2020, the contested out of time objection to the application was allocated to the Commission as currently constituted for determination.

[7] On 10 June 2020, the Commission convened a telephone Pre-Hearing Conference during which the Commission issued Directions for the filing and service of submissions and evidentiary material in support of the Parties’ respective positions regarding the out of time objection.

[8] In due course the Parties filed their respective documentary materials. Further, both Parties have confirmed that they were content for the out of time objection to be determined upon the documentary material which had been filed, and without any requirement for a Hearing.

Relevant Factual Background

[9] The applicant had worked for the employer in three separate periods. The first period of the applicant’s employment was from November 2018 to January 2019, during which time the applicant was employed as a regularly engaged casual. The second period of employment involved work for one week in May 2019 as a casual employee. The third period of employment commenced in August 2019 and concluded with the summary dismissal of the applicant on 29 January 2020. During the third period of the applicant’s employment he was engaged as a permanent, full-time employee.

[10] The applicant was engaged to work in the employer’s business which involved the operation of the Cootamundra Country Club restaurant (the restaurant). The work of the applicant was governed by the Restaurant Industry Award 2010 (MA000119). The employer provided evidence that at the time of the dismissal of the applicant the employer was a small business that employed a total of 12 employees.

[11] On 29 January 2020, the applicant was summarily dismissed after the employer had made an initial investigation of allegations that the applicant had; (a) sent unsolicited nude photographs of himself to a junior staff member who also worked at the restaurant, (b) engaged in flirtatious and inappropriate sexual harassment of junior staff at the restaurant, and (c) told other employees that he possessed child pornography (collectively the allegations). The employer reported the allegations to the police, and apparently criminal charges have subsequently been laid against the applicant in connection with the matters for which he was summarily dismissed.

[12] The applicant was provided with a letter of dismissal dated 29 January 2020, which did not include details of the allegations. Regrettably, the employer decided to dismiss the applicant before it had heard from him in respect to the allegations. However, the employer clearly believed that the conduct of the applicant in respect of the allegations was of such a serious nature that the applicant had committed serious misconduct that warranted his summary dismissal.

[13] On 24 March 2020, the applicant filed his claim for unfair dismissal remedy which was made 34 days late.

The Applicant’s Case in Support of an Extension of Time

[14] The applicant provided material in the form of a mixture of assertions of fact and submissions contained in various documents. The unfair dismissal application document (Form F2) provided the following explanation for the delay with its lodgement: “High anxiety and depression caused by a criminal investigation render me unable to focus on multiple issues”.

[15] On 22 May 2020, the applicant sent a document to the chambers of Catanzariti VP which included further explanation regarding the circumstances associated with the late filing of his unfair dismissal claim. In this document, the applicant mentioned that he had mental health issues which he was suffering at the time immediately following his dismissal. Further, the applicant stated that another reason for the delay in filing the unfair dismissal case involved legal activities that he was engaged in for his pending court case. In addition, the applicant mentioned that he had been required to care for his father who had serious health problems and that this had contributed to the delay in filing his unfair dismissal claim.

[16] The applicant submitted that, in combination, these various matters, his mental health, his father’s ill-health, and the associated legal proceedings, established exceptional circumstances as he was unable to provide time or resources to the matter of the unfair dismissal claim whilst he was dealing with these other matters.

[17] On 24 June 2020, the applicant provided further material in support of establishing exceptional circumstances regarding the late lodgement of his unfair dismissal claim. In respect to the applicant’s mental health issues which he said represented one aspect of the reasons for the delay with the lodgement of his unfair dismissal claim, the applicant provided a report from his treating psychologist. In respect to the matter of his father’s failing health and the consequential need for the applicant to provide care for his father, the applicant also included another copy of the Medical Certificate dated 21/05/2020 provided for Mr Eric Wickham, the applicant’s father.

[18] This material represented the applicant’s case in support of an extension of time and his opposition to the out of time objection raised by the employer.

[19] In summary, the applicant provided material which asserted that the reasons for the delay with filing his unfair dismissal claim involved firstly, his state of mental health which involved a great deal of anxiety and moderate levels of both depression and stress as confirmed in the psychologist’s report. The second aspect of the reasons for the delay involved the ill-health of the applicant’s father and the consequential care that the applicant was required to undertake for his father. Thirdly, the applicant indicated that another reason for the delay in filing his unfair dismissal claim involved his activities in respect of his court case. The applicant submitted that these reasons, when considered in combination, provided exceptional circumstances such that an extension of time for the lodgement of his claim for unfair dismissal should be granted.

The Employer's Case in Opposition to an Extension of Time

[20] In a document dated 2nd July 2020, the employer set out its outline of submission material which was constructed with reference to the factors contained in subsection 394 (3) of the Act. The submission material provided by the employer firstly examined the reasons for the delay that had been advanced by the applicant. In summary, the employer submitted that the cumulative impact of the reasons that the applicant had identified, namely, his state of mental health, the ill-health of his father and the associated carers obligations, and the related legal proceedings, did not establish that the applicant would have been incapable of submitting his application within time. The employer submitted that granting any extension of time because of these reasons would be unwarranted.

[21] The employer provided further submissions which confirmed that the applicant became aware of his dismissal when it took effect immediately on 29 January 2020. Further, the employer stated that the applicant did not dispute the dismissal during the interview when he was advised of his dismissal, nor did he take any further challenge to the dismissal before filing his late unfair dismissal claim.

[22] The submissions made on behalf of the employer also asserted that there was prejudice to the employer because it had been responsible for reporting the allegations to the police. The employer submitted that it would be logical for the applicant to blame the employer for the criminal charges and this established that the applicant had prejudice against the employer.

[23] In respect to the alleged merits of the application, the employer submitted that the applicant was dismissed in circumstances that satisfied the Small Business Fair Dismissal code (the SBFD code). The employer submitted that the summary dismissal of the applicant satisfied that part of the SBFD code whereby the employer believed on reasonable grounds, that the employee’s conduct was sufficiently serious to justify immediate dismissal. The employer stressed that in this case the actions of the applicant were serious enough in nature for it to report the matters to the police immediately.

[24] The employer made further submissions in respect to the alleged merits of the application which raised the issue that the applicant had not met the minimum employment period, which in this case of a small business employer was one year. The employer submitted that the applicant had worked 2 ½ months as a casual and 5 ½ months in the third period of permanent employment. Therefore, in total, the applicant had worked only eight months.

[25] In summary, the submissions made by the employer asserted that the application had been made out of time, and by reference to the various factors contained in subsection 394 (3) of the Act, exceptional circumstances had not been established. Therefore, the employer submitted that the applicant should not be granted an extension of time and his unfair dismissal claim should be dismissed.

Consideration

[26] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established.

[27] In this case, the application was filed on 24 March 2020, which was some 55 days after the day on which the applicant’s dismissal took effect. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 34 days after the expiry of the 21 day time limit.

[28] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) is in the following terms:

“(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.”

[29] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.

[30] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[31] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.

[32] In this case the delay was 34 days relevant to the 21 day time limit. Consequently, the length of the delay of almost 5 weeks in the context of a 3 week time limit, could be described as a significant delay in the context of the statutorily prescribed time limit.

Subsection 394 (3) (a) - The Reason for the Delay

[33] In this instance, the reasons for the delay that were advanced by the applicant involved (a) his state of mental health, (b) his father’s failing health, and (c) engagement in other legal proceedings. The applicant submitted that these matters, in combination, established exceptional circumstances.

[34] The applicant provided evidence about the state of his mental health by way of the psychologist’s report. The psychologist’s report confirmed that the applicant experienced a great deal of anxiety and moderate depression and stress. Importantly, the psychologist’s report did not include any medical evidence about exactly how the applicant’s state of mental health provided incapacity which prevented the applicant from making his unfair dismissal claim at some time earlier than 24 March 2020.

[35] Consequently, the applicant did not provide any medical evidence which verified that the state of the applicant’s mental health in the period between his dismissal and the filing of the application for relief from unfair dismissal actually prevented him from making the application at some earlier time. In the absence of this evidence, the Commission can only wonder as to why the applicant was capable of making the unfair dismissal claim on 24 March 2020, but his state of mental health somehow contributed to his incapacity to make an application before that time.

[36] Although the Commission may have great sympathy for any person suffering a mental illness, there must be evidence of some link between the applicant’s state of mental health and the asserted incapacity to make the unfair dismissal application. The applicant obviously had the capacity to make the application on 24 March 2020, but he did not provide any evidence upon which to establish that the applicant’s state of mental health at any earlier time would have prohibited him from making a claim at an early time. In other words, what changed on or shortly before 24 March 2020 which enabled the applicant to make the unfair dismissal claim?

[37] Similarly, although there was evidence that established the failing health of the applicant’s father, there was no explanation as to why activities associated with caring for the applicant’s father operated to prevent or impede the filing of an unfair dismissal claim at an earlier time. Consequently, there was no evidence to properly link the applicant’s activities in respect of caring for his father with some incapacity to make an unfair dismissal claim within time.

[38] In addition, the requirement for the applicant to deal with related criminal proceedings could not operate to prevent him from making an unfair dismissal application. Although the related criminal proceedings would have understandably caused anxiety and occupied the applicant’s time and energies, if anything, engagement in, and information gathered in other legal proceedings, may have assisted the making of an unfair dismissal application.

[39] On any reasoned and objective contemplation, the reasons for the delay in making the application, when considered separately or in cumulative operation, could not be sustained as sound, acceptable reasons for delay. In simple terms, the applicant had capacity to make his application to the Commission on 24 March 2020, but there was no evidence to provide proper explanation of any incapacity to make the application before that time.

[40] Consequently, when the reasons for the delay are carefully and objectively considered, they unfortunately do not provide a sound and acceptable reason for the delay in filing the application for unfair dismissal remedy. There was no evidence upon which to properly establish a link between the cumulative effect of the applicant’s mental health, his father’s ill-health, and the associated legal proceedings, and any incapacity to make the claim at an earlier time.

Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect

[41] The applicant first became aware of his dismissal on 29 January 2020, when he was advised of his summary dismissal for serious misconduct. The applicant was provided with a termination of employment letter that confirmed his summary dismissal for reason of serious misconduct. Consequently, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal

[42] The applicant did not take action to dispute his dismissal prior to making the late unfair dismissal claim. Therefore, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)

[43] There was a paucity of evidence as to the details of any prejudice. The submissions made by the employer in respect of the issue of prejudice were a little misconceived. On balance, this factor has been treated as being neutral.

Subsection 394 (3) (e) - The Merits of the Application

[44] This factor which is described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if an extension of time was granted.

[45] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. However, in this instance there was uncontested evidence which would render the application open to the prospects of summary disposal.

[46] There was unchallenged evidence that the period of the applicant’s employment aggregated to be less than one year. Further, the employer provided evidence that it was a small business employer. Consequently, in the absence of any challenge to this evidence, the applicant was not a person protected from unfair dismissal because he had not completed the minimum employment period as stipulated by s. 383 of the Act.

[47] Further, the evidence that was provided by the employer strongly supported the prospect that the dismissal of the applicant was consistent with the SBFD code.

[48] These matters were suggestive of a substantial lack of merit of the application and provide strong basis for refusal to grant any extension of time.

Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position

[49] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[50] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  1. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[51] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  2and the following paragraph from that Decision is particularly helpful:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 3

Conclusion

[52] In this instance the exercise of the discretion to extend time has been required in respect to a delay of 34 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[53] The reasons for the delay have involved the applicant’s state of mental health, the illness of his father, and related legal proceedings. However, there has been no evidence provided which could enable the Commission to safely link the cumulative effect of these matters with incapacity that prevented an earlier filing of the application. Upon careful consideration, the reasons for delay could not represent a sound and acceptable reason for the application to have been made after the 21 day time limit had elapsed.

[54] The other factors under consideration, particularly including the merits of the application, either did not assist the applicant's claim for the Commission to exercise the discretion to extend time or were of neutral impact. Importantly, there was strong potential for the summary disposal of the application on the basis that the applicant was not a person protected from unfair dismissal because he had not completed the minimum employment period. This issue, and the potential for the dismissal to have been consistent with the SBFD code, has provided considerable support against any exercise of the discretion to extend time.

[55] On balance and having particular regard for the absence of any satisfactory reason for the delay, I have determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was an unfortunate absence of evidence to provide sound and proper justification for the Commission to exercise the discretion to extend time.

[56] An Order [PR722535] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.

COMMISSIONER

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<PR722533>

 1   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.