Chris Adams v Aruma Services Limited
[2024] FWC 2127
•12 AUGUST 2024
| [2024] FWC 2127 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chris Adams
v
Aruma Services Limited
(U2024/6915)
| COMMISSIONER MCKINNON | SYDNEY, 12 AUGUST 2024 |
Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed
Mr Chris Adams was employed as a Disability Support Worker by Aruma Services Limited (Aruma) from 4 October 2022 until 16 May 2024. In this regard, Mr Adams identified 23 May 2024 as the date of dismissal in his application, but it is clear on the evidence that the dismissal took effect on 16 May 2024 when he was handed a letter of termination. The letter of termination provided for payment of 2 week’s wages in lieu of notice of termination, and the date of 23 May 2024 corresponds with the date of his final pay from Aruma.
On 16 June 2024, Mr Adams applied to the Commission for an unfair dismissal remedy. Under s.394 of the Fair Work Act 2009 (the Act), an application for an unfair dismissal remedy must usually be made within 21 days after the dismissal took effect. The application was accordingly 10 days late.
The question is whether additional time should be allowed for Mr Adams to make the application to the Commission. And the answer is that I cannot allow additional time for Mr Adams in this case, because I am not satisfied that there are any relevant exceptional circumstances. These are my reasons.
Extension of time
Although an application for unfair dismissal remedy must usually be made within 21 days, additional time may be allowed under s.394(3) of the Act if the Commission is satisfied that there are exceptional circumstances.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
In reaching the state of satisfaction as to whether there are exceptional circumstances for the purpose of extending the time to apply for an unfair dismissal remedy, it is necessary to consider each of the matters listed in s.394(3) of the Act. These are:
a)the reason for the delay,
b)whether the person first became aware of the dismissal after it had taken effect,
c)any action taken by the person 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 person and other persons in a similar position.
Consideration
Reason for delay: The reasons given by Mr Adams for the late filing of his application are somewhat confused. Mr Adams submits that he has been mentally unwell with issues including mood, anxiety, lack of sleep and stress related to the dismissal. Mr Adams says he engaged with iCare about worker’s compensation a few days before his dismissal, obtained a medical certificate on the morning of his dismissal and applied for worker’s compensation the same day. He also did some research about disputing the dismissal on the internet which appears to have been limited to finding a union website (through a link on Aruma’s website). This gave him the impression that he would only receive limited assistance from the union and that he would need a lawyer to dispute the dismissal.
Approximately 3 weeks after the dismissal, Mr Adams submits that his partner told him that he could go to “fairwork”. If so, Mr Adams did not action the advice straight away. He was focused on his worker’s compensation claim which he saw as a process to dispute the dismissal by explaining why he needed medical leave. Eventually, iCare advised Mr Adams that he was approved for medical expenses only and that more information would be required to support any claim for wages. He decided that worker’s compensation might not be the avenue for him and that he wanted to seek justice for his dismissal. Mr Adams then did some further research online. He found information about the Commission and how to make an unfair dismissal application, including that there was a 21‑day‑time limit to apply.
Although Mr Adams submits that he always intended on applying for unfair dismissal and that the conditions around extension of time were not clear, I do not accept the submission. It is made at the same time as Mr Adams submits that he did not know this was an option, and that he was focused on, or confused by, the worker’s compensation process. Mr Adams also submits that he was confused about the difference between iCare and “Fair Work” and that he is not an Australian citizen but holds permanent residency (Mr Adams is from New Zealand). Certainly, he did not know that there was a 21-day time limit for making an unfair dismissal application until he finally researched the option of an unfair dismissal claim on 16 June 2024 – the same day that he made the application.
Mr Adams pleads for his reasons to be accepted and for an extension of time to be granted. He submits that he has suffered severely emotionally, physically and financially and this has caused significant stress. Further, he has been trying to obtain work unsuccessfully but suspects that Aruma is acting to prevent him from obtaining other work in the disability support sector.
The difficulty is that other than the assertions of Mr Adams, there is no medical evidence about matters that may have impeded his ability to apply to the Commission either on time or otherwise. It is common, rather than exceptional, for some anxiety and other distress to follow the termination of employment. Ignorance of the law is not an exceptional circumstance and nor is one’s status as a permanent resident rather than a citizen of Australia. Information about how to make an unfair dismissal claim is readily available in the public domain. Taken either individually or together, the reasons given by Mr Adams for the delay do not tend to establish any relevant exceptional circumstance.
Whether the person first became aware of the dismissal after it had taken effect: Mr Adams became aware of the dismissal when he was told about the dismissal and handed a copy of the letter of termination in a meeting on 16 May 2024. He subsequently read the letter of termination although he submits that he was in disbelief.
Any action taken by the person to dispute the dismissal: Mr Adams did not take any action to dispute the dismissal directly until he made this application on 16 June 2024. It is likely that the circumstances of the dismissal arose in the context of his worker’s compensation claim, made on or about the time of his dismissal. Whether these matters were made known to Aruma is a separate question about which I have no information. Aruma submits that it first became aware that the dismissal was disputed when it received a copy of the application for an unfair dismissal remedy.
Prejudice to the employer (including prejudice caused by the delay): Aruma submits that allowing additional time in the absence of evidence to support a finding of exceptional circumstances would encourage the making of late claims and cause it to suffer additional loss of costs and time associated with defending unfair dismissal claims. I find no relevant prejudice to Aruma beyond the ordinary costs of responding to an unfair dismissal claim if the application were allowed to proceed despite being filed 10 days late.
Merits of the application: On the face of the record, Mr Adams had a history of performance and conduct concerns raised with him by Aruma in relation to his employment. These were raised with him periodically in what appears to be a relatively standard organisational process. Mr Adams disputes the veracity of these concerns and relies on a number of matters that he says indicate the unfairness of the dismissal. Whether the performance and conduct concerns are sufficient to (either individually or in combination) to constitute valid reason(s) for dismissal would likely be a matter in contest and I am not in a position to form a view one way or the other. The best that can be said is that Mr Adam’s case is at least arguable.
Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.
Conclusion
I am unable to identify any exceptional circumstances in this case that would permit additional time for Mr Adams to make the application. The reasons given for delay are all matters of relatively common experience in the context of dismissal. Mr Adams was aware, from the time it took effect, of his dismissal. He had access to online resources and a partner who knew about “Fair Work”. He did not take reasonable steps to protect his position either by stating his intentions to Aruma or by seeking advice or information about disputing a dismissal in Australia until after the 21-day period had expired. Although he acted promptly to file the application once he became aware of the 21-day time limit, this does not overcome his general lack of action in the weeks immediately following the dismissal. There is no relevant prejudice to Aruma if the application proceeds, and the merits of the case are a neutral consideration in the circumstances.
As I am not satisfied that there are exceptional circumstances in this case, I cannot allow additional time for the application to be made. It follows that the application is not made in accordance with the Act and must be dismissed.
Order
The application is dismissed.
COMMISSIONER
Appearances:
C Adams on his own behalf.
E O’Kane for the respondent.
Hearing details:
2024.
Sydney (by video):
August 8.
[1] [2011] 203 IR 1 at [13].
Printed by authority of the Commonwealth Government Printer
<PR778207>
0
0
0