Colin McGregor v Islamic School of Canberra
[2023] FWC 2514
•28 SEPTEMBER 2023
| [2023] FWC 2514 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Colin McGregor
v
Islamic School of Canberra
(U2023/7834)
| DEPUTY PRESIDENT DEAN | CANBERRA, 28 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Mr Colin McGregor (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from the Islamic School of Canberra (the Respondent).
The Applicant was employed as a teacher with the Respondent until he resigned on 12 May 2023 following an incident involving the Applicant that occurred at the school. The Respondent says it accepted the Applicant’s resignation, having had intended to dismiss him on 12 May 2023 following an investigation into the incident.
The Applicant says he resigned based on being able to secure another teaching position at another school with the endorsement of the Principal. The Respondent subsequently made what it said was a mandatory report about the incident to the ACT Teacher Quality Institute (the TQI report).
The Applicant lodged this application on 21 August 2023. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The Applicant filed his application some 80 days outside the 21-day period and so his application can only proceed if the Commission grants a further period for it to be made.
The matter was listed for hearing on 27 September 2023. The Applicant appeared and gave evidence on his own behalf and was assisted by his wife. The Respondent was represented with permission by Ms E Shoemark.
For the reasons set out below, I find there are no exceptional circumstances and will dismiss the application.
Extension of time
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Consideration
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[3]
The Applicant acknowledged that he resigned on 12 May 2023 but contended his resignation was given under false pretences and he would not have resigned had he known about the TQI report. He also said he resigned on the condition that the Principal would support him in finding an alternative teaching position.
The Applicant said it had taken time to liaise with TQI about the report and make inquiries about his ability to continue to teach.
The Applicant contended that the incident did not warrant his termination as his actions were a direct result of the Respondent failing to protect him from harassment by certain students.
Additionally, the Applicant said he did not realise he had been dismissed (because he thought he had resigned) until 16 August 2023 when TQI advised him that the Respondent had provided a ‘termination letter’ to TQI, which the Applicant had never seen.
After the hearing concluded, the Applicant sent an email to the Commission stating that he had not raised the issue of the toll the matter had taken on his wellbeing. The email said his mental and emotional health had been severely impacted by the incident and this contributed to the delay in making this application.
The Respondent contended that the reasons provided by the Applicant do not constitute exceptional circumstances. It said the Applicant resigned in circumstances where there was an ongoing investigation into alleged misconduct by the Applicant, and that based on the findings of the investigation the Respondent intended to dismiss the Applicant. However, at the commencement of the meeting during which the Applicant was to be dismissed, the Applicant informed the Principal that he had just resigned. Because of the resignation, the Respondent did not need to dismiss the Applicant or give him the termination letter.
The Respondent explained that despite the Applicant’s resignation it was obliged to report circumstances in accordance with s.70B of the ACT Teacher Quality Institute Act 2010 where there was a misconduct investigation and findings. The TQI report was made in compliance with this obligation.
Having considered the matters raised by the Applicant, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his unfair dismissal application. The TQI report or any follow up with TQI was not a prerequisite for lodging this application.
In relation to the additional reason raised by the Applicant after the conclusion of the hearing, I note there is no medical evidence to support a finding that the Applicant’s mental health prevented him from making his application within time.
There is nothing else in the reasons provided by the Applicant that adequately explain a delay of some 80 days.
This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his resignation on 12 May 2023. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute the dismissal until the present application was lodged. This weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer
The delay is relatively long however I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.
The Applicant said the Respondent failed to provide him with a safe workplace and failed to deal with a serious issue of workplace bullying which led him to resign on the promise of a positive referee report. He said his resignation was given under false pretences and under threat of termination. The Applicant provided a detailed explanation about the circumstances leading to the incident, including inappropriate conduct by some students towards him which he says were not properly dealt with by the Principal. He said he deeply regretted his decision to resign.
The Respondent submitted the merits were poor because the Applicant resigned and was not dismissed.
While the Applicant provided detailed submissions about the incident and circumstances leading to his resignation, the Commission does not have before it any tested evidence. As a result, I consider this to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of ‘exceptional circumstances’ establishes a high hurdle.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
C McGregor on his own behalf.
E Shoemark of Snedden Hall & Gallop Lawyers for Islamic School of Canberra.
Hearing details:
2023.
By telephone:
September 27.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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