Christopher Lyons v Roads Queensland Pty Ltd

Case •

[2024] FWC 677

•

15 MARCH 2024
[2024] FWC 677

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Lyons
v

Roads Queensland Pty Ltd

(U2024/1182)

COMMISSIONER CRAWFORD

SYDNEY, 15 MARCH 2024

Unfair dismissal application filed out of time – no exceptional circumstances – application dismissed

Background

  1. Christopher Lyons (Mr Lyons) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he was unfairly dismissed by Roads Queensland Pty Ltd (Roads Queensland).

  1. Mr Lyons’ Form F2 unfair dismissal application was filed on 5 February 2024. The Form F2 identified a dismissal date of 6 December 2023 and indicated the application was not filed within 21 days of the dismissal taking effect.

  1. On 12 February 2024, Roads Queensland filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr Lyons’ application was not filed within 21 days of the dismissal taking effect on 6 December 2024 and argued that an extension of time should not be granted.

  1. I issued directions for the filing of material regarding whether Mr Lyons should be granted an extension of time for the filing of his application and listed that issue for determinative conference/hearing via video on 13 March 2024.

  1. Mr Lyons represented himself at the determinative conference/hearing. David Cochrane (Director/Owner) represented Roads Queensland. At the outset of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference rather than a hearing, given the parties were not represented. There was no opposition to this. I confirmed a determinative conference would be conducted. 

Material filed

Mr Lyons

  1. Mr Lyons relied on the following explanation contained in his Form F2 application in support of an extension of time being granted:

“Claim is late because the dismissal took me by shock and has caused extreme depression for me. The dismissal happened right before Christmas with many of the supervisors and trainers on leave which has made it extremely difficult to gain any assistance or guidance to help me with the situation. My brother was also employed by the company at the time and we were both fearful he would also be dismissed, which has since happened on 31 January 2024. Both myself and my brother have never had any warnings or any reason as to why we were dismissed. We have only ever done our jobs and gone beyond to assist our employer with his equipment. Now we are both out of work and without an income. This has also compounded the affect the dismissal has had on me and my mental health. I have been unable to leave home for nearly two months due to the stress and anxiety this has caused and have been so angry and upset it is affecting relationships and daily life.”

  1. I marked Mr Lyons’ application form Exhibit A1. Mr Lyons was not cross-examined on his evidence.

  1. Mr Lyons made oral closing submissions at the end of the determinative conference.

Roads Queensland

  1. Roads Queensland relied on its Form F3 and the following documents that were attached to the form:

·   Attachment 1: An outline of submissions dated 7 February 2024.

·   Attachment 2: A document headed ‘PDM FRM Journey Management Plan’ which was completed by Mr Lyons on 6 November 2023.

·   Attachment 3: A series of timesheets with notations added by Roads Queensland which purportedly refer to Mr Lyons leaving work before his scheduled finishing time.

·   Attachment 4: Mr Lyons’ final payslip for the period of 3 to 9 December 2023.

·   Attachment 5: A screenshot purportedly demonstrating Mr Lyons’ brother made a workers’ compensation claim concerning an accident on 30 October 2023 and liability for the claim was denied.

·   Attachment 6: An email form WorkCover QLD to Roads Queensland dated 30 January 2024. The email confirms a workers’ compensation claim made by Michael Lyons regarding an injury suffered on 30 October 2023 had been rejected due to insufficient evidence. 

·   Attachment 7: A screenshot of an angry text message purportedly from Michael Lyons to Mr Cochrane on 30 January 2024. 

  1. I marked the Form F3 response form, and its attachments, Exhibit R1. Mr Cochrane was cross-examined on this evidence.

  1. Mr Cochrane also provided oral closing submissions at the end of the determinative conference.

Extension of time

  1. Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

  1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

  1. The parties agreed and I find that Mr Lyons was dismissed by Roads Queensland on 6 December 2023. Given the dismissal date of 6 December 2023, the 21-day filing period ended on 27 December 2023. Mr Lyons’s application was filed 40 days late on 5 February 2024. As a result, Mr Lyons needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

  1. Under s. 394(3) of the FW Act, the Commission may 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:

(a)   the reason for the delay; and

(b)   whether Mr Lyons first became aware of the dismissal after it had taken effect; and

(c)   any action taken by Mr Lyons 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 Mr Lyons and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

Consideration

Reason for the delay

  1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 27 December 2023. The delay is the period commencing immediately after that time until 5 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

  1. 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.[4]

  1. Mr Lyons 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 Mr Lyons has not provided any reason for any part of the delay.[5]

  1. It is conceivable that Mr Lyons’ mental health issues could have provided a satisfactory explanation for the delay. However, it is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[6] Despite being provided with several opportunities via correspondence and directions from the Commission, Mr Lyons has provided no medical evidence to verify he has been suffering from any medical condition or has attended a doctor since being dismissed on 6 December 2023. Mr Lyons referred during the determinative conference to being able to provide prescriptions for medication as evidence of his condition. Mr Cochrane argued Mr Lyons was on the relevant medication prior to his dismissal. In the absence of evidence from a doctor that has been treating Mr Lyons since his dismissal, I do not consider the existence of prescriptions, even if evidence of these were provided, would be sufficient to establish that the delay in filing was caused by medical issues.

  1. Given the lack of medical evidence, I cannot find that Mr Lyons has a satisfactory explanation for the delay. I find this factor weighs strongly against the granting of an extension of time.

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

  1. There is no dispute that Mr Lyons first became aware of his dismissal on the date it took effect, 6 December 2023. I consider this to be a neutral factor.

What action was taken by Mr Lyons to dispute the dismissal?

  1. There is no evidence Mr Lyons took any action to dispute the dismissal until the unfair dismissal application was filed. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. Roads Queensland did not argue it would suffer any particular prejudice if an extension of time is granted. I consider this to be a neutral factor. 

What are the merits of the application?

  1. 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)”, or in this case, s.394(3)(e).[7]

  1. I accept Mr Lyons is genuinely aggrieved about how he was treated by Roads Queensland. However, there are significant factual disputes between the parties about the events leading to Mr Lyons’ dismissal. The outcome of the unfair dismissal application would be likely to turn on the resolution of these factual disputes, and the evidence provided by the parties at any merits determinative conference/hearing. I do not consider any preliminary assessment can be made based on the material before me.

  1. I consider the merits of the application to be a neutral factor.

Fairness as between Mr Lyons and other persons in a similar position

  1. Neither party advanced a persuasive submission regarding the applicability of this factor. I consider this to be a neutral factor. 

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

  1. Briefly, 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.[8] 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.[9] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[10]

  1. Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

  1. Mr Lyons has not provided a satisfactory explanation for the delay and the remaining factors are neutral. I am unable to find there are any exceptional circumstances that justify the granting of an extension of time.

  1. Not being satisfied that there are exceptional circumstances, I decline to grant an extension and dismiss the application.

Conclusion

  1. I decline to grant an extension of time for the filing of the application.

  1. The application is dismissed.

COMMISSIONER

Appearances:

Mr Lyons representing himself.

Mr Cochrane for Roads Queensland.

Determinative Conference Details:

13 March.
Microsoft Teams.
2024.


[1] Singh v Trimatic Management Services Pty Ltd [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] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[6] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)-[2018] FWCFB 1643, [38], [67].

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[10] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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