Dale Cheeseman v F.Nigro & L.Zappone T/A Chemist Warehouse Northcote
[2023] FWC 1823
•26 JULY 2023
| [2023] FWC 1823 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dale Cheeseman
v
F.Nigro & L.Zappone T/A Chemist Warehouse Northcote
(U2023/4695)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 26 JULY 2023 |
Application for an unfair dismissal remedy
Mr Dale Cheeseman made an application for an unfair dismissal remedy pursuant to s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 29 May 2023.
Section 394(2) of the Act prescribes that an unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Mr Cheeseman’s application was filed outside the 21-day statutory timeframe. Accordingly, this decision deals with the issue of whether the Commission should allow Mr Cheeseman a further period of time to lodge his application pursuant to s 394(3) of the Act.
For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened. Mr Cheeseman’s application for an unfair dismissal remedy is dismissed.
Background
Mr Cheeseman commenced employment with the respondent, F.Nigro & L.Zappone T/A Chemist Warehouse Northcote, in April 2016.[1]
Mr Cheeseman appears to have been the subject of a performance review process in 2022, the specifics and extent of which are in dispute.
Mr Cheeseman was dismissed with immediate effect on 3 August 2022.[2]
Statutory framework
The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[3] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.
Under s 394(3) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:
(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.
These matters are considered below.
Consideration
Reason for the delay: s 394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension. 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.[4]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being the 278 days from 25 August 2022 to 29 May 2023 inclusive.[5] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[6]
Mr Cheeseman contends that he filed his unfair dismissal application in the Commission on 4 August 2022, being the day after his dismissal took effect.[7] Mr Cheeseman considers there to have been a technical issue which arose when filing his application, as he did not receive an acknowledgement email or any communication from the Commission confirming receipt of the application or progressing it. Mr Cheeseman sent an email to the Commission on 11 December 2022 in relation to this issue. The following email chain sets out the nature of Mr Cheeseman’s enquiry and the responses from the Commission. Only the first of the emails in this email chain is dated.
On 11 December 2022, Mr Cheeseman emailed the Commission as follows:
“Hi there,
I submitted an F2 form to '[email protected]' on the 4th of August 2022, the day after I was dismissed and I haven't recieved any communication about it yet. When I try calling I am on hold for a very long time and never get through to speak to anyone.
The website is a total maze and It took me forever to even find somewhere to write this response.
The email address I used was '[email protected]' and my contact number is 0410858235
I'd like this for this to be resolved in a timely manner as it has been over 4 months since I have submitted the form. I am financially unstable as I am unable to work due to the previous mistreatment of my previous workplace.”
The Commission responded stating relevantly as follows:
“We have referred this matter to our IT team who are looking into locating your lodgment. In the meantime if you could please resend your initial lodgment that you sent to us on 4 August 2022 through to [email protected] so we can start the application process.”
Mr Cheeseman followed up this email requesting further information as to what had occurred with his application. The Commission responded by email, relevantly, as follows:
“Thank you for your time on the phone today.
As discussed the search conducted by our IT team yielded no results and they were unable to find the application lodged by yourself in August 2022.
If you are able to find a copy of your application that you tried to submit to us that would be great, as we can see your attempted lodgment to the Fair Work Commission within the 21 calendar days.
If you send your application in a fresh email to us, the time and date it would be taken to be lodged is the time and date that the Commission will receive the application which may be considerably out of time. In these instances you will have to demonstrate why your application is late. Therefore if you have a copy of the original application and the email from your sent items that would be helpful.”
Mr Cheeseman responded as follows:
“After searching everywhere since our last phone call/email I have been able to find a copy of my F2 form as a Word Document, though the original I sent was PDF. I no longer own the computer I wrote the original email, therefore I don't have access to the original PDF file or the sent items of the email client I used.
My demonstration as to why this application is late is due to a technical error out of my control.”
The Commission responded relevantly as follows:
“I acknowledge that you are unable to locate the lodgment originally sent to the Commission. However in order to start a case we require a completed Form F2. You will be able to state in the application why the lodgment is late and a Commission Member may request further information/evidence.”
On 29 May 2023, Mr Cheeseman responded, filing a fresh Form F2 and stating, “I have attached the F2 form hopefully this time it goes through.”
At the extension of time hearing, Mr Cheeseman gave evidence that he did not make his application on 29 May 2023, but rather his email attaching the Form F2 application was forwarded to the relevant parties on that date.
Mr Cheeseman considers that in filing his unfair dismissal application on 4 August 2022 he completed a “webform” and attached it to an email before sending it to the Commission’s nominated email address. Mr Cheeseman did not produce a copy of the email in which he purportedly filed his application on 4 August 2022. Mr Cheeseman’s position is that he no longer holds that record as he had a new computer. In circumstances where (a) the Commission has confirmed with Mr Cheeseman, upon a review conducted by the Commission’s IT support service, that there is no record of Mr Cheeseman having filed an application with the Commission in August 2022, and (b) Mr Cheeseman does not have a copy of the email that he contends was sent to the Commission on 4 August 2022 attaching his application, and where emails are typically stored on servers and not locally on computers, I reject Mr Cheeseman’s contention that he lodged an unfair dismissal application on 4 August 2022 or at any time during August 2022. While Mr Cheeseman may have intended to file an application for an unfair dismissal remedy on or around 4 August 2022, I find that he did not do so.
Further, Mr Cheeseman made an email enquiry with the Commission as to the status of his purported application on 11 December 2022, some four months after he contends that the application was filed. Mr Cheeseman has provided no credible reason for the part of the delay between 25 August 2022 until his enquiry was made on 11 December 2022. To the extent that Mr Cheeseman relies upon his lack of knowledge about the processes the Commission adopts upon lodgement of unfair dismissal applications, this does not provide a satisfactory reason for Mr Cheeseman’s failure to take reasonable steps to enquire about his purported application in a timely way.
Further, in circumstances where I have found that Mr Cheeseman did not file an unfair dismissal application in the Commission on or around 4 August 2022, I reject Mr Cheeseman’s contention that any part of the delay beyond 11 December 2022 was occasioned by the need for Mr Cheeseman to await the outcome of the system review by the Commission’s IT support service. This does not establish a credible reason for the delay.
On the basis of these matters, I am not satisfied that Mr Cheeseman has provided a credible reason for any part of the delay. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)
Mr Cheeseman was dismissed with immediate effect on 3 August 2022. I am satisfied that Mr Cheeseman was aware the dismissal had taken effect on this date as Mr Cheeseman submits that he was advised of his dismissal orally at a meeting on 3 August 2022.[8] It follows that Mr Cheeseman had the benefit of the full period of 21 days to file an unfair dismissal application in the Commission. This weighs against a finding of exceptional circumstances.
Action taken by the person to dispute the dismissal: s 394(3)(c)
Where an applicant takes action to dispute a dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[9]
In response to whether he took steps to dispute his dismissal after he became aware of it, Mr Cheeseman provided as follows:[10]
“No, it was immediate. I was in shock and couldn’t comprehend or put into words my thoughts or feelings. I felt empty.”
While Mr Cheeseman made enquiries with the Commission on and after 11 December 2022 in relation to his purported unfair dismissal application, this correspondence was not simultaneously sent to the respondent. Accordingly, I am not satisfied that the respondent was aware of Mr Cheeseman’s attempts to dispute the dismissal until the respondent was served with Mr Cheeseman’s Form F2 application after it was filed on 29 May 2023. This weighs against a finding of exceptional circumstances.
Prejudice to the employer: s 394(3)(d)
A lengthy delay gives rise to a general presumption of prejudice.[11]
Mr Cheeseman considers there to be no prejudice to the respondent because it is a large business with legal and human resources departments.[12]
The respondent submits that it holds certain documentary evidence which demonstrates the process it carried out when effecting Mr Cheeseman’s dismissal. Nevertheless, in circumstances where the delay is almost a whole year, I am satisfied that the respondent will be prejudiced should further time be allowed. This weighs against a finding of exceptional circumstances.
Merits of the application: s 394(3)(e)
For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application.[13] However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[14]
Mr Cheeseman considers the dismissal was unfair because of the following matters:[15]
(a) he did not receive a separation certificate;
(b) he was discriminated against, subjected to bullying and harassment, forced to work in an unsafe work environment which caused permanent physical injuries and was oppressed after being diagnosed with depression and anxiety;
(c) during counselling sessions, he was met with contempt and his grievances were minimised and dismissed as unimportant or lies;
(d) he is not aware of the reason for his dismissal, but considers that there were personal reasons from management which underpinned the decision;
(e) the dismissal was immediate, with no communication or dialogue, and he was not asked anything until after the dismissal occurred;
(f) he received no support from the manager, proprietor or human resources;
(g) due process was not followed, and he was blindsided; and
(h) the “book keeping” was unprofessional and only supports the employer’s position.
The respondent submits that it undertook a thorough performance management process with respect to Mr Cheeseman, during which Mr Cheeseman was provided with opportunities to respond to identified concerns involving performance and appropriate workplace conduct issues. Mr Cheeseman was issued with a formal warning following a meeting on 1 June 2022, which Mr Cheeseman signed. This process culminated in Mr Cheeseman being hand-delivered a show-cause letter in which he was invited to provide a response.
The Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time. In circumstances where the parties hold substantially different views as to the appropriateness of the process undertaken by the respondent, and the reason for the dismissal, I am unable to form a view on the merits of the application. I consider this factor to be neutral in my assessment.
Fairness as between Mr Cheeseman and other persons in a similar position: s 394(3)(f)
Mr Cheeseman submits that everyone should get a fair go, and the statute of limitations should not exist for victims. He considers that powerful companies such as the respondent should be held accountable.[16]
Mr Cheeseman’s submissions do not address any matters of fairness in the relevant sense and nor do I consider that any matter arises on the evidence before the Commission. Accordingly, this factor is neutral in my consideration.
Are there exceptional circumstances?
The test of exceptional circumstances in s 394(3) of the Act is a stringent one, establishing a high hurdle for an applicant for an extension.[17] Having regard to my consideration of the statutory criteria, and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.
Order and disposition
As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mr Cheeseman’s unfair dismissal application may be made is not enlivened. Accordingly, Mr Cheeseman’s unfair dismissal application does not meet the requirements of the Act.
Mr Cheeseman’s application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D. Cheeseman, on his own behalf
Ms M. Muir, on behalf of the respondent
Hearing details:
2023.
Melbourne (by video using Microsoft Teams)
25 July
[1] Form F2 at 1.1
[2] Ibid at 1.4-1.5; cf, Exhibit 1 (“Applicant Outline of Argument – Extension of Time”) at 1
[3] [2011] 203 IR 1
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[5] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
[6] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
[7]
[8] Exhibit 1 at 2
[9] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
[10] Exhibit 1 at 5
[11] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[12] Exhibit 1 at 6
[13] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]
[14] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]
[15] Exhibit 1 at 7; Form F2 at 3.1-3.2
[16] Exhibit 1 at 8
[17] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; (2018) 273 IR 156 at [14] citing Lombardo v Commonwealth[2014] FWCFB 2288 at [21]
Printed by authority of the Commonwealth Government Printer
<PR764547>
0
7
0